The following is a first person account shared by a Diplomatic Security agent who was assaulted twice by his spouse in
USG quarters temporary housing located in the Washington DC area. He wrote that he wanted to call attention to a situation he faced in the hope that “others who find themselves in similar circumstances know what to expect.” He added that “with the ongoing pandemic and quarantine other employees may find themselves in similar situations as they are trapped with their spouses under stressful circumstances.” He told us he was a DS Agent with a few years on the job. “Despite being relatively junior, I was a good agent that made tenure, had no disciplinary issues, and I received several awards.”
The individual who wrote this told us that he resigned from the State Department and is now employed by another agency in his home state.
This is his story, as sent to us. We’ve added links in [brackets] for the relevant offices:
I was assigned to an HTP [High Threat Post] post in Africa and I was there for several months. While there, a medical issue surfaced that couldn’t be treated at Post. I went on leave to my home state (which was also the location of my previous assignment and where my spouse and child lived while I was at post) and saw a specialist. While on leave, I was “caught out”-the medical condition I was diagnosed with while on leave prevented my return to post. I was told by MED [Bureau of Medical Services] that I could not return to Post, my medical clearance was downgraded, and (after what seemed like an eternity), I was eventually assigned to a position in the DC/NOVA area. Never mind that I burned through all my leave so that I could keep getting paid and the medical per diem that I was authorized didn’t pay out until the very end. I rented out my house in my home state and prepared to move my family to the NOVA area.
While in temporary housing at one of the Oakwood properties, my spouse assaulted me. Our relationship had been badly strained by the long durations apart for training and an unaccompanied tour (while at post, things got so bad that I retained a lawyer and initiated divorce proceedings). After the assault, my spouse was arrested by the local police-and after the mandatory separation period we decided to try to patch things up and try again. Thankfully our child was not present when this happened; several weeks later we brought our child to Virginia. I also started looking for a position with another agency knowing that the foreign service lifestyle was taking its toll. We wound up buying a condo in one of the suburbs and moved in.
I went on a brief TDY and this separation caused issues to resurface to in our relationship. I committed to restarting the divorce proceedings. However, court proceedings, custody issues, and property would be decided in my home state-not in Virginia. I could not afford another residence in Virginia, and I could not stay with my spouse due to the violent outbursts. I was essentially homeless. I reached out to Employee Consultation Services and my CDO [Career Development Officer] and asked about being transferred back to my home state. At least in my home state I would be able to stay with family and see the divorce through. Remaining in Virginia would mean continuing to “crash” at AirBnBs until my tour was up…another 18 months. After several weeks, my spouse assured me that it was safe to return to the condo and I wanted to see my child.
Approximately 3 weeks after returning from this TDY things again took a turn for the worse and my spouse assaulted me-this time with a weapon. I only sustained minor injuries, but my spouse was arrested and this left me responsible for taking care of our child alone. My chain-of-command was incredibly understanding and supportive and I was able to meet family and work obligations without issue. Unfortunately, or HR system was much less understanding and supportive. There were open positions in my home state that I wanted to return to. However, it seems like it takes an act of God to get an employee to one of them. I was told that my request to “the panel”…which was supported by police and court reports, and an affidavit from my attorney which explained the need to be in my home state for the divorce, may not be sufficient justification for reassignment. According to one of the CDOs I was dealing with (more on that later), the panel is concerned that people may “take advantage of (domestic violence) situations” and try to get reassigned. I guess that it is more career enhancing to just continue to get abused and windup losing custody than to transfer an employee. Thankfully, I was able to secure a position with another agency in my home state. I won’t be homeless and I can see the divorce through to the end. Although the pay cut hurts, at least I am safe and will see my child again.
Overall, DS [Diplomatic Security] was a great experience. The work and the people were great. The same goes for all of the Foreign Service and Civil Service colleagues that I had the pleasure of working with. We hire some very talented people, but we don’t do a good job retaining them. Our HR process is garbage. [HR office is now officially the Bureau of Global Talent Management].
I understand that everyone has unique circumstances but just be aware that the programs that you think can help you cannot be relied upon. By all means, try to stay with the foreign service if you like the job…had they been able to accommodate me until my issue was resolved I’d have done 20 and retired. Your DS experience, training, and security clearance make you marketable to other agencies….keep trying and one will come through. If DS (and the Dept. as a whole) were serious about retaining employees, they would fix the HR system. I am now looking to see if I have any legal recourse; others shouldn’t have to go through this. As a wise person said, “at the end of the day it is just a job”. It was an interesting and rewarding job-but still just a job. There is other good work out there. If you think things may go bad, get your applications in. Constantly have applications going with other agencies so you always have a parachute…that is what saved me.
Below are his “lessons learned,” shared for those who may be in similar circumstances:
Posted: 12:18 am ET
On August 25, President Trump announced his intent to nominate former DSS agent Michael T. Evanoff to be the Assistant Secretary of State for the Bureau of Diplomatic Security. The WH released the following brief bio:
Michael T. Evanoff of Arkansas to be an Assistant Secretary of State, Diplomatic Security. Mr. Evanoff is the Vice President for Asset Protection & Security at International Wal-Mart Stores, Inc. in Arkansas, a position he has held since 2014. Previously he served as Chief Security Officer at Coca-Cola in Zug, Switzerland and Athens, Greece and as Global Director of Security at Och-Ziff Capital Management Group in New York. He served as a special agent in the Department of State Bureau of Diplomatic Security from 1985 to 2011, holding senior posts with Overseas Security Advisory Council, NATO Office of Security, Secretary of State Protection Detail, and eight U.S. Missions overseas. He was also diplomatic security liaison officer to the U.S. European Command in Stuttgart, Germany. Mr. Evanoff earned a B.S. at Eastern Kentucky University. He and his wife, Kate Milner Evanoff, have a two-year old son, Luke.
If confirmed, Mr. Evanoff would succeed Greg Starr who retired a week before inauguration (see Patrick Kennedy, Other Officials Step Down – Yo! That’s Not the “Entire” Senior Management, also see Top Diplomatic Security and Consular Affairs Officials to Step Down: Bill Miller, Kurt Rice, David Donahue, John Brennan).
Prior to serving on NATO’s senior staff, Mr. Evanoff was the principal security advisor and Special Agent-in-Charge for the 100 plus protection team for the US Secretary of State, Condoleezza Rice.
Results driven senior executive with more than 24 years with the United States Department of State, Mr. Evanoff has served in a variety of overseas and domestic assignments that have focused on worldwide major events, overseas security program management, international and US military liaisons, criminal and counter-intelligence investigations, and dignitary protection. His overseas assignments include Islamabad, Pakistan(2001-2003), where he served as Counselor for Regional Security, including responsibility for U.S.interests in Afghanistan.
Mr. Evanoff was the Executive Director of the State Department’s Overseas Security Advisory Council (OSAC), a public-private partnership created to foster cooperation and promote the exchange of vital overseas security information between the U.S. Government and the U.S.private sector. As Executive Director, Mr. Evanoff more than doubled the number of OSAC Country Councils from 49 to 103 councils worldwide.
Mr. Evanoff was the first Diplomatic Security Service officer to establish a permanent liaison office with the U.S. European Command (EUCOM/NATO) in Stuttgart, Germany(1999-2001). Prior to that, he was the Senior Regional Security Officer in Rabat, Morocco, and the Regional Security Officer at the U.S. Embassy in Copenhagen, Denmark/Reykjavik, Iceland. He also opened the new Regional Security Office at the U.S. Embassy in Zagreb, Croatia, and the new U.S. Embassy in Sarajevo, Bosnia-Herzegovina, where he worked with NATO and UN forces during the Bosnian conflict. Mr. Evanoff began his overseas career in 1990 as an Assistant Regional Security Officer at the U.S. Embassy in the Philippines.
Mr. Evanoff’s domestic assignments include Deputy Chief of the Protective Liaison Division, and Agent-in-Charge with the Office of Dignitary Protection. Mr. Evanoff also served as an instructor and team leader to DS’ Mobile Counter-Terrorism training unit. Mr. Evanoff’s first assignment was as an investigator in the Washington Field Office.
Mr. Evanoff was named the 2003 Diplomatic Security Employee of the Year for his exceptional work in Pakistanand Afghanistan. He is also the recipient of numerous Department of State awards, including four Senior Foreign Service Performance awards and three Superior Honor Awards. He was promoted into the Senior Foreign Service in 2003 and a graduate of the United States’ Senior Foreign Service Leadership Training School.
Mr. Evanoff received a Bachelor’s degree in Police Science from Eastern Kentucky University with a minor in Corporate Security. He was the recipient of an athletic scholarship and an active member of the school’s NCAA Division 1AA National Champion football team. Mr. Evanoff is a member of the International Organization of Chiefs of Police and the Federal Law Enforcement Officers Association. He is an honorary member of the International Security Management Association.
Posted: 2:21 pm PT
In August 2016, the Bureau of Diplomatic Security’s Principal Deputy Assistant Secretary for Diplomatic Security and Director of the Diplomatic Security Service (DSS) Bill Miller sent a message on sexual harassment to bureau employees. We published the entire message here, Below is an excerpt of that 2016 statement:
Diplomatic Security takes sexual harassment extremely seriously – not only as an issue in the State Department, but also especially within our Bureau.
In our response to questions from Diplopundit on this issue July 27, we noted that we find unacceptable any behavior that threatens people’s well-being in the workplace, or in any way diminishes someone’s professional capacity.
Sexual harassment is an attack on the values this organization seeks to protect every day. It compromises our charge to protect the workplace rights and ensure a safe environment for all Department employees.
As a law enforcement organization, we must hold ourselves to the highest standards of ethical conduct. As the leader of this organization, I hold every employee accountable to that standard and will not accept any less of them.
Sexual harassment and sexual assault are serious issues that affect both men and women. We condemn any comment that seeks to trivialize these activities or their impact on victims.
Diplomatic Security personnel are made aware of their responsibilities as law enforcement officers and federal employees from the beginning of their employment with the Department. DS employees receive recurring training on equal employment opportunity guidelines, prohibiting discriminatory practices, harassment in all its forms, and promotion of diversity and inclusiveness throughout their career.
During the Basic Special Agent Course, Basic Regional Security Officer (RSO) and RSO advanced courses, individuals from the DS Victim’s Resource Advocacy Program provide classes on responding to sexual assault.
I am disappointed and disturbed to hear that anyone in our organization would be concerned about being stigmatized for coming forward to report sexual harassment or sexual assault. It is unacceptable that we have employees of any gender who may not feel comfortable reporting such activities.
This week, we received an email from a new Diplomatic Security Service (DSS) agent detailing sexual language that female student-agents had to endure during Diplomatic Security’s Basic Special Agent Course (BSAC) training. The writer expressed concern over the “worrisome behavior by senior agents conducting the training” and the apparent tolerance by others witnessing such behavior. The writer also wrote: “One senior female agent advised me that upon receipt of this complaint, DSS Management’s first response will likely be to try to figure out who the “complainer” is . . rather than dealing with the senior agents responsible for damaging the department’s reputation.” Our corespondent suggests that if investigators outside of Diplomatic Security want to look into this, all they need to do is talk to the female agents in BSAC’s 137, 136, and 135.
The report below is what we can share publicly. This writer like our other correspondents in the past, is also wary of retaliation. We’ve referred to Special Agent #1 as SA#1 although we can certainly imagine a more colorful name. Special Agent #2 is also referred below as SA#2.
ALERT! ALERT! ALEEEEERT!
Received via email from a DSS Special Agent
Here is what I witnessed:
1) During protective training, I was assigned to a follow car that was “coached” by [Special Agent #1]. During our time with [SA#1], myself and the other females in the group had to listen to [SA#1] describe in detail how during his time in Baghdad he shaved his “balls” and had problems with them “sticking.” [SA#1] then felt it appropriate to detail a trip to his doctor where he had a consultation about erectile medication. [SA#1] also made repeated derogatory comments about his wife. My memory is a little fuzzy on those comments, but they were along the line of, “the old ball and chain, etc.”
I should mention that one of the female agents present is only 22 years old. So this young agent, in her first real job out of college had to sit (literally right next to [SA#1] in the back seat / physically touching him) and listen to [SA#1] , her supervisor, go on and on about his sticky balls in Baghdad and his erectile disfunction . . .i.e. he was discussing his penis.
2) The protection portion of the training was run by unit chief [Special Agent #2]. I personally was “creeped” out by [SA#2] during the entire training as he would try to flirt with the female students in a very unprofessional manner. [SA#2] really crossed the line, however, when for some reason he decided to ask one of the female students (now an agent) for their phone and proceeded to look through it. [SA#2] found the phone number or a text message in the female student-agent’s phone for one of the male contractors working on our final exercise, and texted “I miss you” to the contractor (from the female student/agent’s phone). The female student/agent was of course mortified as it appeared she was texting “I miss you” to the contractor. Is this appropriate behavior from a Unit Supervisor in the training division?!
[SA#2’s] inappropriate behavior continued when, during a re-test he decided to switch out a male student-agent from the position sitting next to him in the exercise to the above mentioned female student-agent. [SA#2] advised the entire BSAC that he was making the switch so he could have someone to “talk to.” He was supposed to be grading the re-test, but instead decided to use the time to creepily attempt to flirt with the female student-agent.
I am sure the above behavior by [SAs #1 and #2] has been repeated in multiple BSAC’s and I hope the department conducts a thorough investigation. Honestly, however, I am not so optimistic that things will change. I know Diplopundit has documented several such sexual harassment claims in the not so distant past, and yet, the above Supervisory SAs seemed to have no compunction in openly behaving this way in front of the 20 plus student-agents!
Where are the Director and the other senior members of DSS management?!! If they cannot protect/prevent a 21 year female agent from having to listen to Supervisory SAs like [SA#1 and SA#2] while she sits in training, how can DSS Senior Management be trusted to protect that same agent from harassment while she is serving in a high threat post in a 98% male RSO shop?!
The Director came to speak to our BSAC, and within 3 minutes of our “pep” talk he told us that if we had joined DSS to use it as a stepping stone we should “get the hell out.” That is a direct quote. One day on the job, and the Director comes in and says “get the hell out” in a pep talk. I would like to turn that around on the Director. If the senior leadership in DSS cannot prevent Supervisory Agents from “creeping out” all females in a BSAC class. Or prevent female student-agents from having to listen to Supervisory SA’s conducting BSAC training discuss their “shaved balls,” maybe it is time for the Director and others to “get the hell out” and leave the bureau in more capable hands?
The Eleventh Circuit’s decision in Henson v. City of Dundee, 682 F.2d 897, 902, 29 EPD ¶ 32,993 (11th Cir. 1982) notes the following:
Sexual harassment which creates a hostile or offensive environment for members of one sex is every bit the arbitrary barrier to sexual equality at the workplace that racial harassment is to racial equality. Surely, a requirement that a man or woman run a gauntlet of sexual abuse in return for the privilege of being allowed to work and made a living can be as demeaning and disconcerting as the harshest of racial epithets.
Female agents should not have to bear and tolerate this kind of language and offensive behavior for the privilege of being allowed to work at Diplomatic Security.
Why would anyone think this is appropriate, acceptable behavior?
And when this is done by individuals in supervisory ranks during training, how do you expect new employees to step up and report this to these same supervisors? The same supervisors, by the way, who can pass/fail employees during basic training. The same supervisors, by the way, who ought to be modeling the highest standards of ethical and professional conduct for agents-in-training.
While the EEOC policy guidance on sexual harassment notes that “sexual flirtation or innuendo, even vulgar language that is trivial or merely annoying, would probably not establish a hostile environment,” it also talks about the pervasiveness and pattern of behavior.
Putting aside our previous reports on harassment at Diplomatic Security for a moment — if we’re talking about three classes to start with here, what is that if not a pattern? And if this behavior was witnessed and tolerated by people and contractors who should know better, then Diplomatic Security has a systemic problem that no broadcast message from bureau officials can fix.
The Supreme Court said in Vinson that for sexual harassment to violate Title VII, it must be “sufficiently severe or pervasive ‘to alter the conditions of [the victim’s] employment and create an abusive working environment.'” 106 S. Ct. at 2406 (quoting Henson v. City of Dundee, 682 F.2d at 904. Since “hostile environment’ harassment takes a variety of forms, many factors may affect this determination, including: (1) whether the conduct was verbal or physical, or both; (2) how frequently it was repeated; (3) whether the conduct was hostile and patently offensive; (4) whether the alleged harasser was a co-worker or a supervisor; (5) whether the others joined in perpetrating the harassment; and (6) whether the harassment was directed at more than one individual.
In determining whether unwelcome sexual conduct rises to the level of a “hostile environment” in violation of Title VII, the central inquiry is whether the conduct “unreasonably interfer[es] with an individual’s work performance” or creates “an intimidating, hostile, or offensive working environment.” 29 C.F.R. § 1604.11(a)(3). Thus, sexual flirtation or innuendo, even vulgar language that is trivial or merely annoying, would probably not establish a hostile environment.
Preventive actions per EEOC‘S Guidelines encourage employers to: “take all steps necessary to prevent sexual harassment from occurring, such as affirmatively raising the subject, expressing strong disapproval, developing appropriate sanctions, informing employees of their right to raise and how to raise the issue of harassment under Title VII, and developing methods to sensitize all concerned.”
Also 29 C.F.R. § 1604.11(f): An effective preventive program should include an explicit policy against sexual harassment that is clearly and regularly communicated to employees and effectively implemented. The employer should affirmatively raise the subject with all supervisory and non- supervisory employees, express strong disapproval, and explain the sanctions for harassment. The employer should also have a procedure for resolving sexual harassment complaints. The procedure should be designed to “encourage victims of harassment to come forward” and should not require a victim to complain first to the offending supervisor. See Vinson, 106 S. Ct. at 2408. It should ensure confidentiality as much as possible and provide effective remedies, including protection of victims and witnesses against retaliation.
All well and good, but in the real world we have these: Chien v. Kerry: DS Agent Files Suit For Race/Sex Discrimination, Hostile Work Environment, and Retaliation; Inbox: Female Diplomatic Security Agent Pens a Note on Sexual Harassment and Career Suicide; Another Concerned DS Agent Pens Response to Diplomatic Security’s Broadcast Message on Sexual Harassment.
The State Department’s sexual harassment policy is memorialized here.
- PDAS Miller Issues Sexual Harassment Message to Diplomatic Security Employees, What’s Missing?
- Chien v. Kerry: DS Agent Files Suit For Race/Sex Discrimination, Hostile Work Environment, and Retaliation Sept 2016
- Inbox: Female Diplomatic Security Agent Pens a Note on Sexual Harassment and Career Suicide
- Another Concerned DS Agent Pens Response to Diplomatic Security’s Broadcast Message on Sexual Harassment
- A Joke That Wasn’t, and a State Department Dialogue That Is Long Overdue
- State Dept Security Officer Alleged Sexual Misconduct: Spans 10 Years, 7 Posts.
- State/OIG on Diplomatic Security’s Special Investigations Division – The Missing Firewall.
- CBS News: Possible State Dept Cover-Ups on Sex, Drugs, Hookers — Why the “Missing Firewall” Was a Big Deal
- State/OIG Releases Investigation on CBS News Allegations: Prostitution as “Management Issues” Unless It’s Not
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Posted: 12:36 am ET
According to Government Executive more than one in four federal workers, or 28 percent, will definitely or possibly consider leaving their jobs after Jan. 20 when Trump is sworn into office and becomes leader of the executive branch, according to a new Government Business Council/GovExec.com poll. Sixty-five percent of feds say they will not consider ending their federal service.
Fear that the Trump Administration will trample on the Constitution and damage the political and moral fabric of our nation apparently prompted one Diplomatic Security agent to resign. There are approximately 2,000 Diplomatic Security agents. The State Department estimates that security officers will have the largest number of attrition for Foreign Service Specialist from FY2016-2020.
The letter below is by Supervisory DSS Agent TJ Lunardi, a career member of the Foreign Service who until last week was posted overseas. In a note to friends he shared his resignation letter with, Mr. Lunardi writes that he is sharing it in the hope that friends “might understand and respect” his choice, even if they “do not agree or support it”. Further, he writes, “the letter makes clear that, for me, this is not a question of politics or party, but one of personal adherence to the values I hold most dear”. We understand that this resignation letter was submitted to the State Department on January 19, 2017. A blog pal shared with us the letter which has been shared internally within the department. We’ve reached out to Mr. Lunardi who confirmed his authorship and expressed no objection with the publication of the letter in this blog. Mr. Lunardi’s resignation was effective on March 4, 2017.
The Honorable John F. Kerry
Secretary of State
Department of State
2201 C Street, Northwest
Washington, District of Columbia 20520
Dear Mr. Secretary:
With deep regret, I must resign from my position as a Supervisory Special Agent of the Diplomatic Security Service. I cannot in good conscience serve in the Department of State under the incoming President, a man I believe to be a threat to our constitutional order.
For the last 17 years – the entirety of my professional life – I have been proud to work for the American people as a member of the Foreign Service. Without hesitation, I have done so under Presidents of both parties. Whether in Baghdad or Berlin, Washington or now in Kyiv, it has been an honor to carry the Diplomatic Security badge, a symbol of the special trust and confidence reposed in me by our fellow citizens to enforce our laws and defend our country’s values and interests. I love this Department, which has been my home, and the extraordinary men and women in it, so many of whom have become like family.
But I take nothing more seriously than my oath to support and defend the Constitution, to bear it true faith and allegiance, to well and faithfully discharge the duties of my office. Throughout my career, these obligations have guided my every action in service of our country. They are what compel me now to resign.
As an American, it is an article of my political faith that our Constitution binds the government and its leaders – and by extension all of us in public service – to guarantee certain unalienable rights: freedom of speech, freedom of the press, freedom of religion, due process, and equal protection of the laws, among others. In his words and his deeds, Mr. Trump has demonstrated repeatedly that he little understands and less respects these tenets of our civic creed. He has threatened the independent media. He has called for the imposition of religious tests and the commission of war crimes. He has incited hatred and violence. He has mocked and bullied the most vulnerable among us. He has empowered racists and emboldened bigots. He has made open league with a despot who seeks to harm our national interests. He disregards and distorts the truth for no other apparent purpose than to maintain his followers in a frenzy of confusion and anger. These are not the acts of a liberal democratic leader. They point the way to authoritarianism, the slippery path to tyranny.
I have thus concluded that defending the Constitution and performing the duties of my office in an Executive Branch under Mr. Trump are incompatible. An honest adherence to my oath dictates that I withhold support from such a man and from the administration he will head. For me this is not a career choice, not something I would desire under normal circumstances. It is among the most difficult and painful decisions of my life. Nonetheless, it is a moral and ethical necessity in the face of someone I judge to be so clearly inimical to the values I have sworn to protect.
Some may counter that the threat posed by Mr. Trump calls for people of conscience to remain in the Department, to blunt his excesses, to resist his agenda. This may be a legitimate course for others, but I fear I lack the capacity for such a compromise. Tyranny encroaches when met with silence, and the graveyard of failed democracies is littered with the epitaphs of those who believed collaboration could moderate the evil of authoritarianism. Knowing these lessons, I cannot allow tacit accommodation of Mr. Trump’s administration to make me complicit in his assault on our Republic.
It is my fervent hope I will be proven wrong, that Mr. Trump will govern wisely, lawfully, and with respect for the Constitution – all of it, and not simply the parts convenient to his purposes. Unless and until he does, however, my place is with those who will oppose him, not those charged to carry out his policies. My oath, my honor, and my conscience demand nothing less of me, even if my heart wishes it could be otherwise.
Traveling the world with the Foreign Service, I have been blessed with the opportunity to reflect on how the fragile nation bequeathed by our Founders has grown to become a beacon of hope and progress, a bulwark against despotism. I am convinced it is the decency of our citizens, and their willingness to put our ideals ahead of their wants, that has made this country both great and fundamentally good. On the battlefields of Bunker Hill and Bastogne, in the jail cells of Occoquan, on Pettus Bridge and Christopher Street – ordinary citizens have written our extraordinary story through sacrifice and an unwavering faith in our constitutional principles.
The survival of our grand experiment in democracy once again depends on such acts of courage. And so I close with a citizen’s request to my friends and colleagues who remain in the Department: Remember and keep always before you the belief in our shared values which inspired you to serve the American people. Whenever you can, rise above the all-consuming daily bureaucratic scrum so that its rigors do not distract from an incremental acceptance of the morally unacceptable. Should the decisive moment come, hear and heed the call of conscience.
Through whatever trials lie ahead, I pray Providence will preserve the people and the Constitution of the United States.
Posted: 1:20 am ET
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This is a hostile environment harassment case originally filed in 2009 with the final EEOC decision issued in July 22, 2014. It involves an African-American Diplomatic Security Agent and FBI Agents assigned to the FBI’s Joint Terrorism Task Force (JTTF) in Tampa, Florida. The allegations include the hanging of a noose (twice) over the wall separating the DS Agent’s cubicle and adjacent workspace, and racially motivated comments and use of the “n-word” against then-presidential candidate Barack Obama.
Previous to the 2014 final decision, the EEOC on the July 26, 2013 appeal writes:
“[W]e determined that Complainant’s claim involved an allegation of hostile work environment that occurred during the course of Complainant’s detail to the Department of Justice, Federal Bureau of Investigations (FBI). We found that the Agency, as Complainant’s employer, and the FBI could potentially be liable for the alleged hostile work environment. Our previous decision determined that while the Agency issued a decision concluding that there was no basis for holding it liable for the alleged hostile work environment, the FBI failed to issue an independent final decision or join in the State Department’s final decision. In that regard, the previous decision vacated the Agency’s decision and joined the FBI as a party to the case. The complaint was remanded to both agencies for further processing and they were ordered to issue a joint final decision addressing the issue of their respective liability for the discriminatory hostile work environment. The record indicates that despite the Order, the agencies issued two separate decisions addressing their positions.”
According to the EEOC, the State Department’s September 30, 2013 final decision, determined that the DS Agent-complainant was “subjected to hostile working conditions which occurred on FBI premises by FBI personnel” and, therefore, it was not liable for the conduct of FBI employees. Moreover, the State Department contended that its “management officials took prompt action to protect Complaint from the harassing behavior of the FBI employees.” The Agency also emphasized in its decision that Complainant did not claim that any Agency official from the Department of State took any adverse or retaliatory action against him. The State Department concluded that there was no basis for imputing liability to the Agency.
In its July 22, 2014 final decision, the EEOC affirmed the State Department’s decision saying, “Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the final agency decision.”
Here are the facts from the EEOC case file:
At the time of events giving rise to this complaint, Complainant worked as a Special Agent at the Agency’s Diplomatic Security Section facility in Miami, Florida.
On October 26, 2009, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of race (African-American) and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when he was subjected to a hostile work environment from 2008 to July 2009 characterized by, but not limited to, threatening, offensive and hostile acts, derogatory comments and racially inflammatory statements.
The evidence gathered during the investigation2 of this matter indicates that, in September 2007, Complainant began an assignment with the FBI’s Joint Terrorism Task Force (JTTF) based in Tampa, Florida. Complainant was the only State Department employee on the JTTF, which was mostly comprised of other special agents employed by the FBI. Complainant was assigned to a 15-member JTTF squad that worked in an office with opened, modular cubicles.
There is little dispute between Complainant and both agencies over the facts of this case. The parties agree that in the spring of 2008, a noose was hung over the dividing wall of Complainant’s cubicle. According to Complainant, at the time, he did not consider the presence of the noose to be a personal attack, but as an African American believed the action was highly offensive. When Complainant discovered that a particular FBI agent (Agent F) (white male) was responsible for hanging the noose, Complainant spoke to him about it and Mr. F apologized for the incident and took the noose down. Complainant did not complain to any Agency or FBI official about this incident at the time, as he believed that the matter had been handled after he spoke directly to Agent F about it.
However, in the fall of 2008, conversations in the office about the upcoming presidential election began to get “heated” and specific comments were made by Agent F and two other named individuals, Agent O and Air Marshall B (both white males), that Complainant perceived as racially motivated against then-presidential candidate Barack Obama. According Complainant, these individuals made offensive remarks such as “we can’t let some Muslim motherfucker take office” and “when I see someone with an Obama bumper sticker I speed up to see who the fuck is driving the car.” He also said the named individuals commented that they “should put Obama bumper stickers on [their] car and go raise some hell.” According to Complainant, such inflammatory statements were not made about the white presidential candidate. Complainant also alleged that the “n-word” was used in referring to candidate Obama. Initially, Complainant indicates that he tried not take these comments personally and to remain calm. However, he contends that, later, the comments began to affect his working environment negatively and made him feel uncomfortable because the individuals making the statements were the same individuals that Complainant had to rely on to perform his job and for his personal safety. Complainant asserts that he began to perceive hatred from his co-workers against African-Americans based on these comments. He began to wonder how his co-workers felt about him.
In October 2008, another noose was hung over the cubicle adjacent to his cubicle. A Halloween mask was placed in the noose to resemble a hanging. According to Complainant, he observed the other agents laughing about the noose. After this second noose incident, Complainant reported the conduct to his first and second line supervisors at the Agency (State) and to the individual who supervised the FBI Agents on the JTTF. According to statements from Complainant’s supervisors at the State Department, the FBI management assured them that the matter would be investigated by the FBI’s Office of the Inspector General (OIG), and that the responsible FBI agents would be assigned to other squads and away from Complainant.
Complainant was interviewed by the FBI OIG in November 2008 while the FBI agents were interviewed in February 2009. The record further indicates that Complainant’s supervisors at the State Department asked for, but never received, a copy of the OIG report of investigation.3 According to Complainant, although FBI officials advised his State Department supervisor that the offending agents would be moved to new assignments to remedy the situation, the FBI JTTF supervisory officials failed to enforce the reassignment and did not take the action necessary to relocate the agents involved. These facts were verified by the supervisors at State.
In the FBI’s supplemental investigation, the FBI Supervisory Special Agents (SSAs) and the Special Agent in Charge (SAC) averred that as soon as they were informed about the second noose incident, they requested an investigation from the FBI’s Office of Professional Responsibility. However, the FBI’s OIG opted to conduct the investigation. The SAC also said that he directed that the three FBI agents involved in the incidents be immediately moved to work areas away from Complainant. However, the evidence shows that only the junior agent was immediately moved, and while the other two eventually moved, the SSAs and SAC all concede that the two agents were often in Complainant’s work area because they needed access to investigative materials housed there. The SAC further stated that, after the OIG investigation was completed; all three agents were eventually subjected to disciplinary action.
According to Complainant, the work environment became worse for him after he reported the second noose incident and the matters were being investigated. Specifically, Complainant contends that no one spoke to him and that two of the agents who were supposed to be relocated objected to the move and remained in his work area. He indicates that the FBI agents often mocked him. Complainant asserts that he felt alienated from his co-workers and could not perform the job he was assigned to do because his peers would not interact with him. Complainant asserts that one of the offending agents was moved only two desks away from him and that the reassignment was not an effective remedy to stop the harassing conduct. Complainant’s supervisor at State was informed by Complainant of the deteriorating situation, and conducted a site visit himself and confirmed from his own observations that the situation was hostile for Complainant.
On January 4, 2009, Complainant’s supervisor at the State Department, frustrated because FBI management did not appear to be taking appropriate action to remedy the situation, told Complainant to pack his things, leave the JTTF office and work on taskforce duties from home. Complainant did so, believing this was the only thing his supervisor at the State Department could do to protect him from the hostile work environment in the office in the absence of any corrective intervention by the FBI. However, Complainant felt that he was being punished by having to leave the office while the offending agents were still in the office performing their jobs. Complainant contends that the hostile work environment did not end until his assignment was changed in July 2009.
In its September 30, 2013 final decision, the Agency determined that Complainant was subjected to hostile working conditions which occurred on FBI premises by FBI personnel and, therefore, it was not liable for the conduct of FBI employees. Moreover, the Agency contends that its management officials took prompt action to protect Complaint from the harassing behavior of the FBI employees. In addition, the Agency emphasizes in its decision that Complainant does not claim that any Agency official from the Department of State took any adverse or retaliatory action against him. Therefore, the Agency concluded that there was no basis for imputing liability to the Agency.
Excerpt below from the EEOC’s analysis and findings:
To establish a claim of hostile environment harassment, Complainant must show that: (1) he belongs to a statutorily protected class; (2) he was subjected to harassment in the form of unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on his statutorily protected class; (4) the harassment affected a term or condition of employment and/or had the purpose or effect of unreasonably interfering with the work environment and/or creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability. […] The harasser’s conduct should be evaluated from the objective viewpoint of a reasonable person in the victim’s circumstances. Enforcement Guidance at 6.
FBI claims the two “noose” incidents were mere pranks
In applying this standard, we find that the evidence of record supports Complainant’s claim of two “noose” incidents, as well as a working environment where Complainant was subjected to derogatory comments and racially inflammatory statements occurring from the spring of 2008 to July 2009. The FBI, however, has argued in its separate September 30, 2013 decision that the offending FBI agents were not motivated by Complainant’s race when, in two separate incidents, they hung a noose in Complainant’s work area. The FBI claims that the incidents were mere pranks directed at another employee and not at Complainant based on his race. The FBI also determined that the remarks by agents concerning the 2008 presidential election and candidate Barack Obama were not racially motivated. The FBI argues that the agents merely expressed their opposition to a particular political candidate and that their comments were not a result of any animus toward Complainant’s protected class.
We disagree with the FBI’s position. In limited circumstances, the Commission has held that certain events, by themselves, may support a finding of discrimination under Title VII. See Juergensen v. Dep’t of Commerce, EEOC Appeal No. 0120073331 (Oct. 5, 2007) (a hangman’s noose is “a highly charged and powerful symbol in the history of this country, calling up painful memories of the lynching of thousands of African Americans”); Brooks v. Department of the Navy, EEOC Request No. 05950484 (June 25, 1996). Moreover, the record is clear that derogatory and racially inflammatory language, including the use of a highly charged racial epithet (the n-word), was openly used by the FBI agents in Complainant’s presence. Moreover, the fact that the remark was not specifically directed toward complainant is not dispositive. See Barber, Eley, Powell and Johnson v. Department of the Navy, EEOC Requests Nos. 05A50657, 05A50771, 05A50972, 05A50973 (March 16, 2006). Therefore, we find that the evidence of record supports a finding that Complainant was subjected to a racially hostile work environment while serving on the FBI task force in 2008 and 2009.
In considering the Agency’s liability for this discriminatory hostile work environment, we note that an Agency is liable for harassment by a co-worker or other non-supervisor when it “knows or should have known of the conduct, unless the Agency can show that it took immediate and appropriate corrective action.” See 29 C.F.R. § 1604.11(d). Whether the Agency’s action is appropriate depends upon “the severity and persistence of the harassment and the effectiveness of any initial remedial steps.” Taylor v. Dep’t of the Air Force, EEOC Appeal No. 05920194 (July 8, 1992). The appropriateness of the Agency’s conduct in response to harassment depends upon “the particular facts of the case-the severity and persistence of the harassment, and the effectiveness of any initial remedial steps.” Owens v. Dep’t of Transp., EEOC Appeal No. 05940824 (Sept. 5, 1996). Appropriate corrective action is a response that is reasonably calculated to stop the harassment.
FBI failed to advise the State Department of investigation results
The record establishes that when Complainant informed his State Department management of the hostile work environment to which he was being subjected, Agency officials immediately contacted Complainant’s FBI supervisors and were advised that the offending agents would be assigned to other teams. Because of the unique circumstances involved in this matter, the Agency had no authority over the FBI agents and did not initiate an investigation because the matter occurred on FBI premises. The Agency also indicates that although the FBI conducted an investigation, the FBI failed to advise the Agency of its results. The record further indicates that Complainant’s State Department supervisor met with Complainant and advised him of the FBI’s plan to remove the offending agents and asked if Complainant wanted to take further action. Complainant elected not to pursue any further action initially, believing that the FBI’s promised intervention into the matter would end the hostile work environment. When Agency management later learned from Complainant that his work environment had not, in fact, improved, and that he was being alienated at the FBI offices, Complainant’s supervisor decided to have Complainant work from home in an attempt to eliminate Complainant’s exposure to the hostile work environment that the FBI had failed to end.
FBI failed to end hostile environment
The record reflects numerous emails sent between various members of Complainant’s management team at the Department of State in their efforts to support Complainant. These emails support the affidavits of State Department officials and Complainant himself, that they initially thought that the FBI’s response to the alleged harassment was adequate. However, when State Department management learned that the FBI had failed to end the hostile environment, it became disillusioned with the FBI’s efforts and removed Complainant from the workplace in order to protect him from further harassment. Complainant testified that he believed the Agency did everything it could to support him.
Diplomatic Security Agent-Complainant was removed from workplace
We find that when the State Department management learned of the harassment, it took prompt action by immediately contacting Complainant’s FBI supervisors in an attempt to address Complainant’s concerns and end the hostile environment. However, because the hostile environment was created by FBI employees at an FBI location, Complainant’s supervisors had no direct authority to remedy the situation. Instead, the Agency was forced to rely on their FBI counterparts in management to address Complainant’s concerns. The record reflects that Agency officials kept in constant contact with Complainant during the course of the FBI’s investigation into Complainant’s allegations and, to the best of its ability, the Agency followed up on the progress of the FBI investigation. The record further indicates that once the Agency learned that the FBI’s investigation did not alleviate the hostile environment to which Complainant was being subjected, the Agency removed Complainant from the environment and permitted him to work from home until his assignment with the FBI was terminated. The Department of State admits that Complainant was subjected to a hostile work environment while working at the FBI. However, record evidence shows that State Department management took prompt and immediate action to report Complainant’s claims to FBI officials and, when the FBI failed to remedy the situation, removed Complainant from the FBI work site in order to prevent further exposure to the hostile work environment. Accordingly, we find that there is no basis for imputing liability to the Department of State for the discriminatory hostile work environment in this case.