Senators Seek Review/Analysis of @StateDept and @USAID Sexual Harassment and Assault Data

Posted: 2:29 am ET

 

U.S. Senators Ben Cardin (D-Md.), Ranking Member of the Senate Foreign Relations Committee, and Jeanne Shaheen (D-N.H.), Ranking Member of the SFRC Subcommittee on State Department and USAID Management, led the Committee’s Democrats in a letter to Secretary of State Rex Tillerson and USAID Administrator Mark Green on January 17, requesting a review and analysis of data to better understand the scope of sexual harassment and assault issues at the Department and Agency, in order to consider appropriate policy changes to address the problems.

ABOUT TIME.

Note that back in September 2016,  this blog wanted to know the statistics on sexual assault in the Foreign Service, specifically in Afghanistan and Iraq since 2003. We were also interested in overall statistics on sexual assault in the Foreign Service worldwide, during the last 10 years. We did not ask for names, only numbers. We simply asked for an accounting of sexual assault reports since the invasion of Iraq in 2003 to the present, and the worldwide number of reports spanning over 280 overseas posts in the last 10 years. We were sure the data must be available somewhere. How could it not?

This was the State Department’s official response at that time:

“The Office of Special Investigations receives and catalogues allegations and complaints. Allegations are neither categorized by location nor by alleged offense.”

That remains a shocking response.

Without looking at their data by location and offense, or for that matter by individuals accused, how is the State Department to know when there are serial offenders in its ranks? (See The State Dept’s Sexual Assault Reporting Procedure Appears to Be a Black Hole of Grief).

In its 4th Quarter 2017 report for period ending September 30, 2017, the Office of Civil Rights (S/OCR) does have some information on Equal Employment Opportunity Data required by the No Fear Act.  The public report indicates that reprisal is the number one complaint by basis in FY2017.  Non-sexual harassment went from 72 complaints in 2016 to 103 at the end of FY2017. The comparative report notes 3 complaints of sexual harassment in 2016 and 6 complaints at end of FY2017.

The average number of days in investigation? 207.17 days.

Total Findings of Discrimination after a hearing for sexual harassment? Zero. In 2012.

Also zero in 2013, in 2014, in 2015, in 2016, and through the end of FY2017. Zero.

Apparently, S/OCR does not also count cases reversed by the EEOC like that 2016 case where S/OCR did not find sexual harassment but where the EEOC decided that the complainant was indeed subjected to sexual harassment and ordered the State Department to take remedial actions (see @StateDept to Hold “Harassment in the Workplace” Session But First, Read This FSI Sexual Harassment Case).

S/OCR was recently a presenter in a State Department Q&A session “Should I Report That? How (and when) to Report Workplace Conflict, Harassment & Bias in the Department”.

To read more about our previous posts on sexual assault, click here; for sexual harassment, click here.

Below is the text of the letter to Secretary Tillerson and USAID Administrator Mark Green:

We write to draw to your attention the November 28, 2017 letter signed by over 200 national security professionals who have served, often with distinction, in the State Department, the intelligence community, USAID, and the Pentagon about their experiences of (or serving as witnesses to) incidents of sexual harassment or sexual assault inside our national security bureaucracies.

This letter speaks to what we believe remains a critical issue that too many of our national security institutions have been too slow to address: sexual assault and harassment and its effects on the professionalism and effective functioning of those institutions. These incidents and the pervasive culture that all too frequently excuses these behaviors and actions have had serious and detrimental consequences for the careers and lives of those affected – and by depriving the United States of the service of some of our best and brightest, a deep and negative effect on our national security.

To better address this issue, we would urge you to provide the Foreign Relations Committee a review of your current methods for data collection, oversight, reporting structure, victim protections, analysis and anti-sexual harassment training, including employee feedback on these mechanisms and how they are being implemented. In our oversight capacity, we hope to work with you, to review and analyze the data to better understand the scope of the problem we confront as we consider appropriate policy changes to address it.

The November 28 letter contends that training is all too often “erratic” and “irregular,” and that policies often go unnoticed among staff. In our experiences serving on the oversight committee with responsibilities for the Department of State and USAID we concur with this contention. We would urge that you pay special attention to whether anti-harassment training is adequate, how it is implemented, and how it is enforced, in your respective reviews. We also urge you to examine your procedures for disciplinary actions to ensure that those who demonstrate improper behavior are held accountable for their actions.

The letter also calls for a number of reforms including a clear indication that national security leadership will not tolerate certain behavior, ensuring the full accessibility and functioning of “multiple, clear, private” channels to report abuse without fear of retribution, and ensuring sufficiently regular, mandatory, and instructive training for employees and contractors. We would be interested in your thoughts and comments on these potential areas for reform.

We also urge that you each take the opportunity to work with us to determine what additional resources are necessary to ensure that each report and allegation receives proper attention, that your offices are collecting all the relevant data, that cases are addressed in a timely and confidential fashion, and that training is fully implemented across the State and USAID workforce.

At a moment in our country when we are being reminded anew of the scope and challenge of sexual harassment in the workplace, we are rededicating ourselves here in the Senate to addressing this issue in our own ranks. The Legislative branch faces similar challenges and that while we work to address them, we expect the same from executive branch agencies. For our part, in addition to exploring appropriate oversight and legislative action to ensure that you have the resources and focus that you need to address these issues, we also intend to place additional emphasis on these issues in the confirmation process. We intend to ensure that nominees live up to the highest standards of behavior, and will seek commitments regarding how they intend to address sexual harassment and assault if they are confirmed.

Lastly, we note that the abuses, harassment and assaults noted in the November 28 letter are enabled by an environment in which the diversity of our nation – one of our “secret weapons” and competitive advantages as a nation – is not reflected in the national security workforce. This is especially true at the senior levels. At the State Department, for example, women and men enter the Foreign Service in roughly comparable numbers, but only about one-third of our senior Foreign Service Officers are women. Although women comprise a majority of the Civil Service, the Senior Executive Service remains 61% male and 89% white. Similarly disturbing trends come to light when analyzing the salaries, bonuses and expectations of workplace behavior amongst men and women working in national security roles. We still have a long way to go on gender equality in the national security workforce, and encourage you to share with us as well your vision for how you plan to address deficiencies in recruitment, retention and promotion to assure that your national security workforce is equitably balanced.

The members of our national security workforce should not be forced to spend their time and energy combatting harassment and a culture of tolerance for disrespectful behavior. Rather, they should be free to focus on what they do best – working to keep our nation safe. And we know from numerous studies that a more diverse workforce leads to better outcomes. A 2015 McKinsey study found that a more diverse workforce is more successful through improved decision-making, leadership, and financial progress. We know that to be true in the private sector and we know that to be true for government as well.

Mindful that there are myriad challenges and opportunities to better address sexual harassment in the workplace we do not seek nor do we expect you to develop a cookie-cutter approach to these issues. Rather, we call on you to respect the dignity of each member of our national security workforce by ensuring an environment in which each individual is capable of fully contributing his or her talents to our national security, without obstruction.

The original text of letter is posted here.

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@StateDept to Hold “Harassment in the Workplace” Session But First, Read This FSI Sexual Harassment Case

Posted: 3:40 am ET

 

For those attending the event, here are a few items to read though this is not an exhaustive list. Help us ask these presenters questions that State/PA and State/DS have long ignored:

While we are on the subject, let us revisit a classic case of sexual harassment, where the State Department, specifically one of the presenting offices in the January 11 session had determined that “the alleged acts of sexual harassment did not occur” only to be reversed by the EEOC.

On January 4, 2012, Complainant filed Complaint 24 alleging that the Agency discriminated against her based on her national origin (Arabic/Iraqi), sex (female), religion (Christian), color, and in reprisal for prior protected EEO activity under Title VII when:

3. Her teaching contract was not renewed after August 5, 2011;

4. She was subjected to a hostile work environment characterized by, but not limited to, name calling and sharing an office.  She specifically asserted that since her conversion to Christianity, she was taunted by her Iraqi colleagues, who called her a “peasant,” a “prostitute,” a “bitch,’ and a “daughter of a dog.” She asserted further that she had been told that she had “sold her religion” and had a shoe thrown at her.  Complainant further asserted that she had been the victim of an unsolicited sexual overture by a colleague; and

5. On September 23, 2011, she was not selected for a full time teaching position.

The Agency completed its initial investigation on Complaint 1 in November 2012.  It did not complete an investigation on Complaint 2.  On Complaint 2, according to the Agency, Complainant did not submit an affidavit for the investigation.  Around that time – on March 14, 2013 – Complainant signed forms withdrawing Complaints 1 and 2.5  The Agency ceased processing Complaint 2, but went ahead and issued a FAD on Complaint 1 on May 13, 2013.

In its FAD, the Agency found no discrimination on Complaint 1.  Complainant filed an appeal.  On appeal, the Agency did not note that Complainant previously withdrew her complaint.

In EEOC Appeal No. 0120132236 (May 16, 2014), we recounted that Complainant was provided the right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge, but there was no evidence she did so.  We reversed the FAD on the ground that the investigation was inadequate.  Unaware that that Complainant withdrew Complaints 1 and 2, we ordered the Agency to do a supplemental investigation and to consolidate Complaint 2 with Complaint 1 if the Agency was still processing Complaint 2 and had not yet issued a final decision thereon.

In its request for reconsider EEOC Appeal No. 0120132236, the Agency argued that it issued its FAD on Complaint 1 in error, and that Complainant previously withdrew Complaints 1 and 2.  It submitted a copy of its letter to the EEOC compliance officer about the withdrawal of Complaint 1, and Complainant’s signed withdrawals.  We denied the request on the ground that it was untimely filed, and repeated our order in EEOC Appeal No. 0120132236.

Following a supplemental investigation on Complaint 1, the Agency issued a new FAD finding no discrimination therein.  The Agency found that Complainant was not denied the opportunity to attend training and to proctor tests, and the alleged acts of sexual harassment did not occur.  The Agency recounted that it ceased processing Complaint 2 after she withdrew it.6

The EEOC’s decision says that the “Complainant was not subjected to discrimination regarding issue 2” but it determined that “Complainant was subjected to discrimination based on her sex regarding issue 1 – sexual harassment.”

This case which was filed in 2010 was decided by the EEOC on July 7, 2016. Six years. The State Department was ordered to take the following remedial actions within 150 days after the decision became final, and was directed to submit a report of compliance, as provided in the statement entitled “Implementation of the Commission’s Decision.”  The report shall include supporting documentation of the agency’s calculation of back pay and other benefits due complainant, including evidence that the corrective action has been implemented.”

1. The Agency is directed to conduct training at FSI, School of Language Studies for all management and staff in the Arabic Section.  The training shall focus on how to identify and prevent sexual harassment connected with employment.14

2.  If S2 is still employed with the Agency, it shall consider taking disciplinary action against him.  The Agency shall report its decision.  If the Agency decides to take disciplinary action, it shall identify the action taken.  If the Agency decides not to take disciplinary action, it shall set forth the reason(s) for its decision not to impose discipline.

3.  The Agency shall gather evidence on compensatory damages, including providing Complainant an opportunity to submit evidence of her pecuniary and non-pecuniary damages regarding being sexually harassed.  For guidance on what evidence is necessary to prove pecuniary and non-pecuniary damages, the parties are directed to EEOC Enforcement Guidance: Compensatory and Punitive Damages Available Under § 102 of the Civil Rights Act of 1991 (July 14, 1992) (available at eeoc.gov.)  Thereafter, the Agency shall calculate damages, pay Complainant any damages awarded, and issue a new FAD on damages appealable to the Commission.

The State Department was also directed to post the EEOC order:

The Agency is ordered to post at its Foreign Service Institute, School of Language Studies copies of the attached notice.  Copies of the notice, after being signed by the Agency’s duly authorized representative, shall be posted both in hard copy and electronic format by the Agency within 30 calendar days of the date this decision becomes final, and shall remain posted for 60 consecutive days, in conspicuous places, including all places where notices to employees are customarily posted.  The Agency shall take reasonable steps to ensure that said notices are not altered, defaced, or covered by any other material.  The original signed notice is to be submitted to the Compliance Officer at the address cited in the paragraph entitled “Implementation of the Commission’s Decision,” within 10 calendar days of the expiration of the posting period.

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

Posted: 3:01 am ET

 

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

Via eeoc.gov

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

Background:

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

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

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

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

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

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

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

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

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

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

Decision

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

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

The FAD is AFFIRMED.

Read the full case here via eeoc.gov.

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@StateDept Diplomat: Why would any woman in her right mind choose to report harassment? See me? #MeToo

Posted: 1:31 am ET

 

The following came to us from a Foreign Service Officer who said she is in the middle of an Equal Employment Opportunity (EEO) complaint, has already waited 16 months to get her appeal heard, and now, could face firing from the State Department.  We are republishing below the entire text:

#MeToo In the wake of the Weinstein allegations and the blessed floodgates they have opened, many people have asked why more women don’t report sexual harassment and assault, and called upon women to do so in order to out the harassers and protect other women from them. I offer my story fighting harassment and bullying at the U.S. Department of State as an example of the huge cost women can pay when they have the courage to take a stand. It is a story of a system that is designed to silence and indeed, punish those who come forward, while protecting the institution and the abusers at all costs.

I have served as a dedicated and decorated Foreign Service officer in the Department of State since May 2011 when I left my practice as a litigation attorney to serve my country. My first tour was in Port-au-Prince, Haiti where I worked with the Haitian parliament and political parties to improve their electoral system, including supporting women seeking and serving in elected office, as well as strengthening the rule of law, improving democratic processes, and protecting human rights. I was awarded the Department of State’s Meritorious Honor Award for my work advancing women’s rights in Haiti in 2013, called a “rising star” by my supervisors, and recommended for immediate tenure and promotion. On the strength of those recommendations, I was tenured on my first try in the fall of 2014 after only serving one overseas assignment – a rarity in the Foreign Service.

In early 2015 I was sent to a small Consulate in Latin America to serve as a vice consul adjudicating visas for my second tour. I eagerly threw myself into my new work. After less than 120 days, in May 2015 the Department of State medically evacuated me back to the United States and curtailed my assignment. Why? Because I was suffering from severe physical and mental health issues stemming from a months-long concerted campaign to harass, bully, and intimidate me on the basis of my gender. I filed an Equal Employment Opportunity (EEO) complaint with the Department of State, returned to Washington, D.C. and tried to move on with my life professionally and personally.

Little did I know the harassment, bullying, intimidation, and retaliation had only just begun. Over the course of the summer and fall of 2015 the individuals I had filed my EEO complaint against engaged in numerous acts of retaliation against me, including writing and filing a false, defamatory, negative performance review which to this day remains in my official employment file and has led to the complete ruin of my career at the Department of State. They also spread vicious, false, and defamatory rumors about me, stating that I had been forced to leave Post because I was having an affair with a married American working at the Consulate – an absolute falsehood. Finally, they refused to ship home all of my personal belongings that I had had to leave behind when I was quickly evacuated from the Consulate. After months of delay, all of my things arrived in D.C. covered in toxic mold – tens of thousands of dollars of personal property and memories destroyed. I filed an amended EEO complaint alleging that these actions were all taken in retaliation for filing my first EEO complaint and retained an attorney.

The Department assigned my case to an outside investigator in early 2016. I submitted hundreds of pages of affidavits, briefs, and exhibits detailing the harassment and bullying as well as the concerted and ongoing campaign of retaliation against me. The six individuals I accused submitted virtually identical and brief statements categorically denying all of my allegations and offering absolutely zero corroborating evidence. The investigator failed to interview any of the additional witnesses we proffered and issued a brief report denying my claims and failing to include or address much of the evidence I had proffered.

In July of 2016 I filed an appeal with the U.S. Equal Employment Opportunity Commission and was told by my attorney that it would be at least six to nine months before an administrative judge was assigned to my case due to the backlog of EEOC complaints and lack of sufficient resources to timely adjudicate them. After 16 months, an administrative judge was finally assigned to my appeal at the end of October 2017. But it is likely too late for her to help me.

In the intervening time, the State Department has refused to remove the false, negative, defamatory performance review filed in retaliation against me from my official performance file – stating that they could not do so unless and until ordered by a judge. I have been up for promotion two times since that review was placed in my file in November of 2015. Each time the promotion boards have denied me promotion and issued a letter stating that I was “low-ranked” in the bottom two percent of officers in my grade and cone. As explanation, each letter quoted extensively from the 2015 false, negative, defamatory review filed in retaliation for my EEO complaint, citing this review as the reason for my low ranking.

On November 8, I received notification that because of these consecutive low-rankings I had been referred for “selection out” of the Foreign Service, a polite way of saying I had been referred to a Board for firing. That Board will meet sometime before the end of 2017 and decide whether or not to fire me. The rules state that the Board will not accept any additional evidence or witness testimony and will make its decision instead based solely on my written performance file which includes the false, negative, defamatory, review filed in 2015 in retaliation for my EEO complaint.

By contrast, every individual I accused in my EEO complaint has been promoted and continues to serve at increasingly high ranks in the Foreign Service. They have faced absolutely zero consequences for their unlawful harassment, bullying, and retaliation against me – while I have suffered greatly for coming forward and reporting their unlawful actions and am about to pay the ultimate price: the loss of my job and livelihood.

I followed the rules. I worked within the system to come forward and report the harassment, bullying, and retaliation I have faced and continue to face. I continued to serve my country and work hard to represent the United States throughout this time. In fact, I have continued to receive awards for my work – most recently in September 2017. Yet I have paid and continue to pay dearly for my decision to come forward. So to those who ask why more women don’t come forward, I ask “why would any woman in her right mind choose to report harassment in the workplace when this is the result?”

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

Posted: 12:33 am ET
Follow @Diplopundit

 

Via eeoc.gov

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

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

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

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

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

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

CONTENTIONS ON APPEAL

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

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

ANALYSIS AND FINDINGS

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

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

CONCLUSION

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

Read in full here.

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U.S. Embassy’s Nurse Nightmare Not Subjected to Discrimination, EEOC Affirms

Posted: 1:24 am ET
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Via eeoc.gov:

This EEOC case involves an embassy nurse who filed an equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII) in 2013. Two things are striking about this case: 1) there was an incident that according to the EEOC decision involved the Complainant’s actions during a visit to a local hospital. According to the record, Complainant was so rude that “a letter [was] signed by all Azerbaijani doctors, nurses, and administrative staff that had been present” documenting his behavior and it was sent to the Embassy in Baku; and 2) an incident where the Complainant had been engaged in a political debate with members of the Embassy motor pool staff. He became angry and “stormed out” of the area then, within five minutes, Complainant called their supervisor “demanding” that the four drivers see him to be medically evaluated for their fitness for work. On March 2017, the EEOC affirmed the State Department’s  decision that Complainant did not demonstrate that he was subjected to discrimination, reprisal and/or harassment.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Locally Employed Staff (LES), Registered Nurse at the U.S. Embassy in Baku, Azerbaijan. On October 1, 2013, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of national origin (Azerbaijani), sex (male), religion (Muslim), and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when:

(1) On May 24, 2013, he was issued a Letter of Reprimand;

(2) His EPR reporting period was extended beyond the one-year calendar cycle, contrary to normal practice;

(3) On September 10, 2013, his position was terminated; and

(4) He was subjected to a hostile work environment characterized by, but not limited
to isolation from co-workers, threats, and demeaning and inappropriate comments.

After the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge. When Complainant did not request a hearing within the time frame provided, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The Agency found that, assuming Complainant established a prima facie case of discrimination and reprisal with respect to all his bases, management articulated legitimate, nondiscriminatory reasons for its actions.

Regarding issue 1, Complainant was issued a Letter of Reprimand because in early May 2013 management was notified by their contacts at the Anti-Plague Section (APS) of the Azerbaijani Ministry of Health that Complainant had called them, yelled at their employee who had answered the call and when the employee refused to identify himself, Complainant called the Ministry of Health wherein he stated his name and indicated that he was calling from the American Embassy. He then proceeded to complain about the APS. Management indicated that this event damaged their relationship with the Ministry of Health. The Human Resources Officer indicated that she had to apologize and promise that Complainant would be re-trained on telephone etiquette.

Regarding issue number 2, the Agency explained that Complainant’s reporting period was extended beyond the one-year cycle because he had been placed on a Performance Improvement Plan (PIP) in November 2012, to address several issues, e.g., exceeding the legal scope of his nursing license. Shortly after he was placed on the PIP, Complainant took an extended period of leave beginning on November 29, 2012 and ending January 7, 2013. Because Complainant had been off work for more than eight weeks of the 120-day PIP period, the decision was made to extend the PIP for an additional 60 days. The Human Resources Officer advised that the 60-day extension period began on March 23, 2013 and concluded on May 24, 2013.

With respect to issue 3, Complainant’s September 10, 2013, termination. Complainant argued that his termination was due to complaints he made about unfair treatment and a hostile work environment. Management explained that Complainant’s termination was due to three instances of misconduct. The first incident involved the telephone call that was described in issue 1. The second incident involved Complainant’s actions during a visit to a local hospital. According to the record, Complainant was so rude that “a letter [was] signed by all Azerbaijani doctors, nurses, and administrative staff that had been present” documenting his behavior and it was sent to the Embassy in Baku. The third incident occurred when Complainant had been engaged in a political debate with members of the Embassy motor pool staff. He became angry and “stormed out” of the area then, within five minutes, Complainant called their supervisor “demanding” that the four drivers see him to be medically evaluated for their fitness for work. Complainant’s supervisor determined that he was “us[ing] [his] position to bully other colleagues when [he was] angry.” Complainant’s supervisor maintained that Complainant was terminated because, among other reasons, she needed to protect the other employees from his abusive and erratic behavior. The supervisor felt that to allow Complainant to continue working as a caregiver when people were afraid of him was not prudent or reasonable, and that his actions reflected badly on the U.S. Government.

Finally, with regard to issue 4, Complainant alleged that he was subjected to a hostile work environment, when: he complained that he found Halloween decorations offensive; an employee from another organization “made a few remarks about his beard,” including that it made him look “like one of [the]bad guys;” written “Workplace Conduct Expectations,” were issued because of him; his supervisor claimed that in the Azerbaijani culture, girls get married at around 13 years of age and Complainant found this to be a stereotype that he found offensive; and he had a conversation with a coworker where he believed the coworker was insinuating that people living in Azerbaijan were not able to seek their rights.

Complainant maintained that he went to outside officials because he could not resolve his problems with management since they were harassing him. He maintained that the alleged harassment affected him because it made him “emotionally less stable, depressed and easier irritated.” He also alleged that he experienced medical problems and started taking medication due to the alleged harassment.

Management maintained, among other things, that Complainant believed that policies were being applied to him and were personal attacks against him. Management indicated, however, that Complainant was not subjected to harassment. Management explained that after Complainant indicated that he was uncomfortable with the Halloween decorations they were taken down. Further, the comments made about his beard were made from an employee from another agency and there was no evidence that the comment was made in a hostile manner. Management indicated that the “Workplace Conduct Expectations” did not just apply to Complainant. Regarding Complainant’s claim that his supervisor commented that Azerbaijani girls as young as 13 years were married, she indicated that she had been invited to give a talk to young women in the villages about nutrition and health. In doing research in advance of her speech, she had asked Complainant what types of situations young girls faced (e.g., HIV, family planning, sexually transmitted diseases), at which time Complainant told her that girls as young as 13 years old were often married. She emphasized Complainant never told her he believed he was being subjected to a hostile work environment.

Management indicated that Complainant was not subjected to harassment, as the issues claimed were not severe or pervasive enough to establish a hostile work environment.

The decision concluded that Complainant failed to prove that the Agency subjected him to discrimination, reprisal, and/or harassment as alleged.
[…]
ANALYSIS AND FINDINGS

Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we find that even if we assume arguendo that Complainant established a prima facie case of religion, sex, and national origin, discrimination and reprisal, the Agency articulated legitimate, nondiscriminatory reasons for its actions, as listed above. We find that Complainant has provided no evidence which suggests that the Agency’s reasons were pretext for discrimination or that discriminatory animus was involved in this matter. The record clearly showed that Complainant had a history of inappropriate and inflammatory behavior in the workplace. The Commission has long held that the Agency has broad discretion regarding its hiring and firing practices unless discrimination is shown. Accordingly, we find that discrimination has not been shown in this case. We also find that Complainant did not establish that he had been subjected to unlawful harassment in this case because the purported conduct, assuming it occurred as alleged, was neither severe or pervasive enough to establish a hostile work environment.

CONCLUSION

Accordingly, the Agency’s FAD which found that Complainant did not demonstrate that he was subjected to discrimination, reprisal and/or harassment is AFFIRMED.

The full decision is available to read here.

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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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@StateDept Dismisses EEO Complaint For Following Wabbit Into a Hole, EEOC Reverses

Posted: 1:45 am ET
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Here is an EEO case with a reminder that the Commission has previously held that an agency may not dismiss a complaint based on a complainant’s untimeliness, if that untimeliness is caused by the agency’s action in misleading or misinforming complainant.

Quick summary of case via eeoc.gov:

At the time of events giving rise to this complaint, Complainant worked as a Human Resources Specialist at the Agency’s Department of State facility in Washington, DC. Complainant contacted an EEO Counselor alleging that she was subjected to discrimination and a hostile work environment. When the matter was not resolved informally, the EEO Counselor emailed Complainant a Notice of Right to File (“NRF”), which Complainant received and signed on January 25, 2017. However, in that same email, the EEO Counselor conflated the EEO filing requirements, misinforming Complaisant that she had to file her signed NRF, rather than her formal complaint, within 15 days. On that same date, Complainant attempted to file her signed NRF with her EEO Counselor, who informed Complainant that the signed NRF had to be filed with the Agency’s Office of Civil Rights, and that filing the signed NRF with that office would initiate the formal EEO complaint process.

Complainant filed her signed NRF, rather than a formal complaint, to the Office of Civil Rights on January 25, 2017, and the Office of Civil Rights confirmed its receipt on January 27, 2017. Complainant therefore filed her signed NRF within the 15-day period that she was supposed to file her formal complaint. However, it was not until February 21, 2017, which was beyond the 15-day filing period, when the Office of Civil Rights informed Complainant that she had submitted the wrong form to initiate the formal EEO process, and that Complainant needed to file a formal complaint rather than her signed NRF.

On March 6, 2017, which was within 15 days of being informed that she had filed the wrong form, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the bases of sex, disability, and reprisal for prior protected EEO activity under Section 501 of the Rehabilitation Act of 1973 when:

1. On 10/11/2016, she was denied the ability to telework;
2. On 11/10/2016, she was subjected to an environment of uncertainty and arbitrary decision making regarding her accommodation requests; and
3. She was subjected to a hostile working environment characterized by repeated acts of disparate treatment, unpleasant social interactions with management, and retracted support for locally negotiated reasonable accommodations.

The Agency dismissed Complainant’s complaint, pursuant to 29 C.F.R. § 1614.107(a)(2), for failing to file her formal complaint within 15 days of receiving her Notice of Right to File.

On appeal, Complainant contends that the Agency’s dismissal of her complaint should be reversed because her EEO Counselor mistakenly advised her to file her signed NRF, rather than a formal complaint, within 15 days of receiving her NRF, causing her to miss the filing period for her formal complaint.

The decision notes the following:

EEOC Regulation 29 C.F.R. §1614.106(b) requires the filing of a written complaint with an appropriate agency official within fifteen (15) calendar days after the date of receipt of the notice of the right to file a complaint required by 29 C.F.R. §1614.105(d), (e) or (f).

On June 28, 2017, the EEOC reversed the State Department’s decision to dismiss the complaint and remanded the case to the agency for further processing in accordance with its order as follows:

The Agency is ordered to process the remanded claims in accordance with 29 C.F.R. § 1614.108. The Agency shall acknowledge to the Complainant that it has received the remanded claims within thirty (30) calendar days of the date this decision was issued. The Agency shall issue to Complainant a copy of the investigative file and also shall notify Complainant of the appropriate rights within one hundred fifty (150) calendar days of the date this decision was issued, unless the matter is otherwise resolved prior to that time. If the Complainant requests a final decision without a hearing, the Agency shall issue a final decision within sixty (60) days of receipt of Complainant’s request.

Compliance with the Commission’s corrective action is mandatory. Read the full decision here.

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EEOC Finds @StateDept Liable Under the Rehabilitation Act in US Embassy Kabul Medical Clearance Denial

Posted: 12:21 am ET
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This is a case where an FSO previously diagnosed with rheumatoid arthritis was granted a Class 2 medical clearance for an assignment at the US Embassy in Kabul, Afghanistan.  While at post, the FSO developed pericarditis and was hospitalized in Kabul in 2013; she was subsequently medevaced to Texas. The FSO was later told by State/MED that she retained her Class 2 Medical Clearance, but it was not Kabul-approved.  In August 2013, the FSO filed an EEO complaint alleging that the State Department discriminated against her on the basis of disability. The State Department’s decision  notes that in denying her clearance, its medical officers failed to conduct a sufficient individualized assessment of the risk posed by Complainant’s medical condition and its impact on her ability to return safely to Kabul.  It held “that there was no evidence that the medical officers and Medical Review Panel took into account the duration of the risk, the nature and severity of the potential harm, and the likelihood that the harm will occur or the imminence of the potential harm, as required by the law.”  It also concluded that MED“improperly denied Complainant a Class 2 medical clearance (Kabul-approved).”  The FSO on appeal asserted that she was not provided with full relief, including reasonable attorney’s fees and costs. In response to that appeal, the State Department noted that its final decision was, get this — “erroneously issued.”

Summary of Case via EEOC:

In September 2011, Complainant was assigned to work as an Administrative Officer at the Agency’s Embassy in Kabul, Afghanistan.  Complainant had been diagnosed with ongoing rheumatoid arthritis since 1999. In conjunction with her assignment to Kabul, Complainant was reviewed by the State Department’s Office of Medical Services (State/MED) for a medical clearance.  Complainant was granted a Class 2 (Kabul-approved) medical clearance 2 and she started her duties in Kabul.  While on leave from Kabul in the United States in June 2012, Complainant saw a doctor and was prescribed a new medication for her arthritis called Leflunomide. At the time, Complainant did not report that she was taking this new medication to Agency medical officials.

In April 2013, Complainant developed pericarditis which led to her hospitalization in Kabul.  At that time, her physicians at the hospital advised her to stop taking Leflunomide and she did so.  Upon her release from the hospital, Embassy medical officials made the decision to send Complainant back to the United States for an evaluation by her own physicians. On May 7, 2013, Complainant departed Kabul for El Paso, Texas.

Upon her return to El Paso, Complainant was examined by her own physician (“Complainant’s Physician”) for clearance to return to Kabul.  She provided documentation to the Agency’s Office of Medical Services indicating that her physician had no concerns with her return to Kabul. On May 31, 2013, Complainant was initially informed by the Agency’s physician (“Agency Physician”) that her medical clearance for Kabul would be renewed.

However, on June 3, 2013, the Agency Physician informed her that she retained her Class 2 Medical Clearance, but was not Kabul-approved.  Complainant was told that the reason for the denial of her clearance to return to Kabul was her use of Leflunomide, a drug banned by the Department of Defense for use by personnel assigned to Afghanistan.3  As Complainant had stopped using the medication since her April 2013 hospitalization, she appealed the denial of her medical clearance for Kabul.  Her appeal was denied by the Agency’s Medical Review Panel on the grounds that her cessation of Leflunomide was too recent. The Panel indicated that Complainant needed to show a period of at least 12 month of “clinical stability” before she could return to Kabul.  The Panel defined clinical stability as “the absence of systemic clinical manifestations of pericarditis and rheumatogic problems.”  There was some speculation that, because Leflunomide reduces resistance to infection, Complainant’s pericarditis may have resulted from its use.  Complainant then requested an Administrative Waiver to allow her to return to her position in Kabul.  That waiver was also denied on June 19, 2013.  Since May 2013, Complainant has been working from the Agency’s El Paso, Texas, Intelligence Center.

On August 22, 2013, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the basis of disability (rheumatoid arthritis) when her “Return to Post Authorization” was not reinstated and she was prevented from returning to work at the U.S. Embassy in Kabul.

At the conclusion of the investigation, Complainant requested a hearing before an EEOC Administrative Judge (AJ).  However, on March 10, 2014, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). In its decision, the Agency conceded the Complainant was an individual with a disability as defined by the Rehabilitation Act.  The Agency further determined that Complainant was an otherwise qualified individual with a disability, as she had been performing in the position in question in Kabul for the preceding two years, and had the requisite knowledge, experience, skill, and education to perform the position.

The Agency’s decision then noted that Complainant was denied a Class 2 Medical Clearance (Kabul-approved) because of the perceived risk of harm she posed to herself due to her recent use of the drug Leflunomide. As a result of this determination, Complainant was prevented from returning to her previously-approved assignment in Kabul.  The Agency’s decision went on to conclude that, in denying her clearance, its medical officers failed to conduct a sufficient individualized assessment of the risk posed by Complainant’s medical condition and its impact on her ability to return safely to Kabul.  Specifically, Agency held that there was no evidence that the medical officers and Medical Review Panel took into account the duration of the risk, the nature and severity of the potential harm, and the likelihood that the harm will occur or the imminence of the potential harm, as required by the law.  The Agency decision noted that medical opinions that supported Complainant ability to safely return to Kabul were improperly given little weight during the medical clearance determination.  Accordingly, the Agency’s final decision concluded that it improperly denied Complainant a Class 2 medical clearance (Kabul-approved).

Based on its finding that Agency medical staff had failed to provide Complainant with an individualized assessment, the Agency ordered the Office of Medical Services to go forward and actually conduct the required individualized assessment of Complainant’s medical condition and her ability to return to the Administrative Officer position at the Agency’s Embassy in Kabul without posing a significant risk of substantial harm to herself or others.

This appeal followed.  On appeal, Complainant did not challenge the findings by the Agency, but asserted that she was not provided with full relief, including reasonable attorney’s fees and costs.

In response to the appeal, the Agency noted that its final decision was erroneously issued in light of Complainant’s previous request for a hearing.  As such, the Agency argued that the final decision should be voided.  In response, Complainant argued that the final decision should not be considered void and the matter should not be remanded for a hearing.

EEOC ANALYSIS AND FINDINGS: Violation of Rehabilitation Act

As an initial matter, we find that Complainant’s statement on appeal constitutes a withdrawal of her earlier hearing request.  As such, we deny the Agency’s request to void its final decision.

In that decision, the Agency found that its medical staff failed to conduct a proper individualized assessment as required by the Rehabilitation Act when Complainant was prevented from returning to work at the U.S. Embassy in Kabul.  Complainant does not challenge the Agency’s findings in its final decision.  As such, we affirm the Agency’s specific findings.  However, the Agency did not expressly state that its actions constituted discrimination in violation of the Rehabilitation Act.

As evidenced by the Agency’s final decision, there is no dispute that Complainant is an individual with a disability who was otherwise qualified for the position in she had previously held in Kabul. In other words, she met the skill, experience, education and other job requirements to perform the duties of the position in Kabul, apart from the Agency’s decision to retract her medical clearance for work in Kabul.

The Agency noted in its findings in its own decision that Complainant’s Physician provided medical documentation that Complainant was no longer taking Leflunomide, the drug of concern, had not had flare-ups of her medical condition, and had embarked on a healthier lifestyle. However, the Agency conceded that Complainant’s supporting medical documentation was improperly “given little if any weight.”  The Agency also admitted in it decision that the denial of the Class 2 Medical Clearance was due to the “perceived risk of harm she posed to herself or others” and not on an actual risk.  Based on the record including the medical evidence provided by Complainant’s Physician, we find that Complainant has shown that she was qualified for the position in question in Kabul and was only prevented from doing so based on the Agency’s perception that she posed a safety risk.  This moves the burden of proof squarely to the Agency to prove that there is a significant risk of substantial harm. Massingill v. Dep’t. of Veterans Affairs, EEOC Appeal No. 01964890 (July 14, 2000).  See also, Branham v. Snow, 392 F.3d 896 (7th Cir. 2005) (“employer’s burden to show that an employee posed a direct threat to workplace safety that could not be eliminated by reasonable accommodation”); Hutton v. Elf Atochem N. America, 273 F.3d 884, 893 (9th Cir. 2001) (direct threat affirmative defense).

Here, as already noted, the Agency’s own decision concluded that Complainant was denied a Class 2 Medical Clearance because of perceived risk of harm she posed to herself or others.  Our regulations permit the Agency to deny job assignments on the basis of disability where such an assignment would pose a direct threat. See 29 C.F.R. § 1630.2(r). A “direct threat” is defined as a “significant risk of substantial harm” that cannot be eliminated or reduced by reasonable accommodation. Interpretive Guidance of Title 1 of the Americans with Disabilities Act, Appendix to 29 C.F.R. Part 1630, § 1630.2(r); Echazabal v. Chevron U.S.A., Inc. 536 U.S. 73 (2002); 29 C.F.R. § 1630.2(r).

The issue in finding direct threat is “not…whether a risk exists, but whether it is significant.” Bragdon v. Abbott, 524 U.S. at 649. A direct threat must be based on an individualized assessment of the individual that takes into account: (1) the duration of the risk, (2) the nature and severity of the potential harm, (3) the likelihood that the potential harm will occur, and (4) the imminence of the potential harm. Interpretive Guidance on Title I of the Americans With Disabilities Act, Appendix to 29 C.F.R. § 1630.2(r). The individual assessment must be based on a reasonable medical judgment that relies on the most current medical knowledge and/or on the best available objective evidence. Id. A determination of significant risk cannot be based merely on an employer’s subjective evaluation, or, except in cases of a most apparent nature, merely on medical reports.

The Agency held in its final decision that it “failed to conduct a sufficiently individualized assessment of the risk posed by Complainant’s medical condition, and its impact on her ability to return safely to Kabul.  There is no evidence that the following factors were taken into account: 1) the duration of the risk; 2) the nature and severity of the potential harm; 3) the likelihood that the potential harm will occur; and 4) the imminence of the potential harm.”  Based on the record and the Agency’s own findings in its decision, we determine that the Agency has not met its burden of establishing that Complainant’s return to Kabul would have posed a direct threat.  Accordingly, the Agency’s defense to denying Complainant the Class 2 Medical Clearance was not established, and the Agency is liable under the Rehabilitation Act.

As a result of this violation of the Rehabilitation Act, Complainant is entitled to make-whole relief, which the Agency did not provide her in its final decision.  First, the Agency should offer Complainant the assignment in Kabul if she chooses to return. See Nathan v. Department of Justice, EEOC Appeal No. 0720070014 (July 19, 2013) (awarding the complainant the position for which he applied following a determination that the agency violated the Rehabilitation Act when it medically disqualified him without an individualized assessment). In addition, Complainant correctly argues that she should be awarded reasonable attorney’s fees and legal costs for processing her EEO complaint, as well as the opportunity to support her claim for compensatory damages. Also, we find that the Agency provide training to relevant management highlighting the Agency’s obligations with respect to the Rehabilitation Act.

The EEOC concludes the case with a modification of the State Department’s  final decision and remanded the matter to the agency with the following order signed by Carlton M. Hadden on October 25, 2016.  The EEOC case file notes that compliance with the Commission’s corrective action is mandatory.

The Agency is ordered to take the following remedial action:

1. Within 60 calendar days from the date this decision is issued, the Agency shall offer Complainant an assignment in Kabul substantially similar to the one she lost. If Complainant rejects the offer of the assignment, the Agency shall use the date of rejection for purposes of back pay calculations as noted below.  If Complainant accepts the assignment, the Agency shall use the date Complainant assumes the assignment for purposes of back pay.

2. The issue of compensatory damages is REMANDED to the Agency. On remand, the Agency shall conduct a supplemental investigation on compensatory damages, including providing the Complainant an opportunity to submit evidence of pecuniary and non-pecuniary damages. For guidance on what evidence is necessary to prove pecuniary and non-pecuniary damages, the parties are directed to EEOC Enforcement Guidance: Compensatory and Punitive Damages Available Under § 102 of the Civil Rights Act of 1991 (July 14, 1992) (available at eeoc.gov.) The Agency shall complete the investigation and issue a final decision appealable to the EEOC determining the appropriate amount of damages within 150 calendar days after this decision is issued.

3. The Agency shall determine if Complainant is entitled to an award of back pay as a result of the denial of her return to her assignment in Kabul.  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 is issued.  The 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.  We note that the Agency should consider if there would have been a difference in locality pay and benefits to Complainant including but not limited to promotions or other incentives for an assignment in Kabul, Afghanistan.

If there is a dispute regarding the exact amount of back pay and/or benefits, the Agency shall issue a check to the Complainant for the undisputed amount within sixty (60) calendar days of the date the Agency determines the amount it believes to be due.  The 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.”

4. Within sixty (60) days from the date this decision is issued, the Agency is ordered to provide at least eight (8) hours of training to the responsible officials covering their responsibilities under the Rehabilitation Act. The training shall cover the Agency’s obligations regarding the provision of reasonable accommodation, as well as its obligation to conduct an individualized assessment pursuant to the direct threat defense.

5. If Complainant has been represented by an attorney (as defined by 29 C.F.R. § 1614.501(e)(1)(iii)), she is entitled to an award of reasonable attorney’s fees and costs incurred in the processing of the complaint, including this appeal.  29 C.F.R. § 1614.501(e).  The award of attorney’s fees shall be paid by the Agency.  The attorney shall submit a verified statement of fees to the Agency — not to the Equal Employment Opportunity Commission, Office of Federal Operations — within sixty (60) calendar days of this decision is issued.  The Agency shall then process the claim for attorney’s fees in accordance with 29 C.F.R. § 1614.501.

The State Department was also ordered to post this order within 30 days of the date of the decision for a duration of 60 consecutive days.

The Agency is ordered to post at its Washington D.C. facility copies of the attached notice.  Copies of the notice, after being signed by the Agency’s duly authorized representative, shall be posted both in hard copy and electronic format by the Agency within 30 calendar days of the date this decision is issued, and shall remain posted for 60 consecutive days, in conspicuous places, including all places where notices to employees are customarily posted.  The Agency shall take reasonable steps to ensure that said notices are not altered, defaced, or covered by any other material.  The original signed notice is to be submitted to the Compliance Officer at the address cited in the paragraph entitled “Implementation of the Commission’s Decision,” within 10 calendar days of the expiration of the posting period.

 

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FBI Agents Hung A Noose Over an African American DS Agent’s Workspace Twice, FBI Called It “Pranks”

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.

Agency’s liability

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.

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