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

Posted: 1:45 am ET

 

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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U/S For Management Directs Task Force to Create New Sexual Assault FAM Guidance

Posted: 5:08 pm PT

 

The message below addressing sexual assault was sent to all State Department employees on November 22, 2016.  Several copies landed in our inbox.  The State Department sent us a note that says they want to make absolutely sure that we have seen this, and gave us an “officially provided” copy.

 

A Message from Under Secretary Pat Kennedy
November 22, 2016

Sexual assault is a serious crime.  It can traumatize victims and have a corrosive effect on the workplace.  The Department is determined to do all it can to prevent sexual assault, and, if it does occur, to support victims and bring the perpetrators to justice.  We are committed to effectively and sensitively responding to reports of sexual assault and to ensuring victims are treated with the care and respect they deserve.

The Department has policies and procedures relating to sexual harassment and workplace violence.  We recognize these policies may not address all issues specific to sexual assault and that sexual assault is more appropriately dealt with in its own FAM section.  At my direction, an inter-bureau taskforce is in the process of creating this new FAM section.  Among the issues the taskforce will take up are reporting processes, confidentiality, sexual assault response training, and potential conflict of interest issues.

As we work to complete a stand-alone sexual assault FAM section, it’s important to note that there are and have been policies and procedures in place to help employees and their family members who are sexually assaulted get the medical care they need and to bring perpetrators to justice.

Medical services are available at post, and personnel from the Bureau of Medical Services (MED) can also provide advice from Washington, DC.  Post’s Health Unit healthcare providers are the first responders for medical evaluation and treatment overseas and will abide by strict patient/provider confidentiality.  An employee or member of the Department community who has been sexually assaulted may also report the incident to MED’s Clinical Director (currently Dr. Behzad Shahbazian) at 202-663-2976 during business hours.  After hours and on weekends/holidays, victims may contact the MED Duty Officer at 202-262-9013 or via the Operations Center at 202-647-1512.

For reported sexual assaults that are committed by or against members of the Department community or occur within a COM facility or residence, RSOs serve as the law enforcement first responders.  Every reported sexual assault is handled as a criminal matter that may be prosecuted in the United States under federal extraterritorial laws.  For more guidance on the handling of such cases, see 16 STATE 56478.

If a victim overseas wants to report a sexual assault to law enforcement authorities, but prefers not to report it at post, he or she can contact the Office of Special Investigations (DS/DO/OSI), via telephone at 571-345-3146 or via email at DS-OSIDutyAgent@state.gov<mailto:DS-OSIDutyAgent@state.gov>.  The DS/DO/OSI duty agents are available 24 hours a day, seven days a week and can investigate an allegation independent of post management.  OSI agents have been trained to handle such cases and will work with the victim and can also provide information about the Victims’ Resource Advocacy Program available at vrap@state.gov<mailto:vrap@state.gov>.

Victims may also report sexual harassment directly to the Office of Civil Rights<http://socr.state.sbu/OCR/Default.aspx?ContentId=6666> (S/OCR) at http://snip.state.gov/f5h or via phone at 202-647-9295 and ask to speak with an Attorney-Adviser.  Pursuant to 3 FAM 1525, S/OCR oversees the Department’s compliance with anti-harassment laws and policies and conducts harassment inquiries.

The working group developing the new FAM section is consulting with other agencies about best practices in such areas as communication, training, and post-attack medical and mental health support and will integrate appropriate elements of these programs to ensure that the Department’s policies on sexual assault are victim centered and effective.

The Department’s position is clear: there is zero tolerance for any form of violence, including sexual assault, within our Department community. We understand these are sensitive and difficult situations, but we strongly encourage victims to come forward so the Department can take the appropriate steps to ensure the victim’s safety and bring the perpetrator to justice.

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Sexual Assault Related posts:

A Joke That Wasn’t, and a State Department Dialogue That Is Long Overdue

Posted: 2:41 am ET

Apparently, there was a recent Sounding Board (SB) post about how “a DS agent made a rape joke in front of a whole class (60+) without thinking anything of the joke.”

It took us a while but we finally got the SB post dug up what was said during the Security Overseas Seminar (SOS), which is designed to meet the security awareness needs of U.S. Government personnel and their families going overseas.

An employee posted on the Secretary’s Sounding Board that she first attended the SOS seminar five years ago and felt that the “Sexual Assault  & Rape” session was “both incomplete and demeaning to sexual assault victims (who the instructor largely assumed were always female).” During her most recent attendance, she writes that she was “disappointed by the same message: there are ways to prevent sexual assault/rape, no mention of what the Regional Security Officer can/will do,” and “no mention of the Health Unit’s, etc. involvement.”

The majority of the course is said to be focused on what employees and family members can do to prevent sexual assault: institute the “buddy system,” avoid isolated areas, dress like a local, etc.  The employee asks what about the 84% of all reported sexual assault/rapes being committed by someone that the victim trusted, or women who were raped in an open and crowded area in Germany or “are we saying that women from cultures where they are required to cover from head to toe never get raped because they are entirely hidden?” The SB post says that the employee asked the instructor “why were we not discussing the main cause of sexual assault/rape: gender socialization, particularly focusing on male privilege and entitlement to women’s bodies?”   The instructor reportedly responded that “we cannot change an entire culture in an hour” to which the employee agreed but urge that “we nevertheless begin a dialogue on this topic.”

That’s not, of course, the end of this story.  The following is from the same SB writer sent to us by a Foggy Bottom nightingale:

“The next day, I overheard four people (3 men and 1 woman) exchanging pejorative comments about what I had said. One of the men (a DS [Diplomatic Security] agent who as RSO [regional security officer] will be a victim’s first recourse in the event of a crisis) exclaimed that he would like to “see how I do in Port Moresby.” Allow me to break down this hurtful comment: he wants to see how I do in a country where women can still be tortured to death on charges of witchcraft when a natural death occurs in the family; a country where the Australian health attach showed up at a diplomatic reception after abandoning her car when she was randomly targeted in a mob rush while driving. Because I wanted to begin a dialogue on male privilege, its effects on rape culture, and how I found “tips” on “sexual assault/rape prevention” to be a covert form of victim-shaming, this man, this Diplomatic Security agent, commented on how he wanted to see me, a woman, fare in a country that is known for its hight incidents of rape against ex-pat women. And this gentleman is my colleague, not an obnoxious drunk man at a local dive bar. When I turned around and asked if they wanted to discuss what I had said, one said he didn’t see the point, the other told me how my comment was inappropriate in an one-hour session. No further comments made. How is this dialogue not overdue? (Note: I am not seeking to shame or put-down my colleagues for saying what they assumed was far and away from my hearing range. This is more to highlight the amount of tension surrounding this topic.”

Hey — if one cannot talk about this topic in an SOS session, where are you supposed to discuss this?

We wrote to the Office of Civil Rights under Secretary Kerry’s office (S/OCR) asking what response it made (if any) to the Sounding Board post. That was, oh, weeks ago so we figure we’re not going to hear from S/OCR.

The nightingale also said that “any time a female coworker brings up EEO, rape culture, or feminism in general,” DS agents the employee worked with allegedly make comments like “Ugh, don’t work with her, she’ll EEO you.” or “She probably has a ton of files on men”.   Our correspondent told us that she could think of a number of situations “with bullying, harrasment, and such” that were all documented by supervisors but nothing was done about them.  Our writer also alleged that “a good portion joke about rape or sexual assault on a daily basis.”

Which is why we wanted to hear from the State Department office tasked as the main contact point for questions or concerns about sexual harassment and EEO matters.

But hey, nada. Yok.

What’s even more troubling is when we see these reviews for the State Department over at InHerSight.com:

“I, and a lot of other females, are considering leaving, or have left, because of the misogyny. Diplomatic Security is the absolute worst.” – See more at: https://www.inhersight.com/company/us-department-of-state#sthash.5rVrFJHX.dpuf

“Working in a predominately male field means tacky and disrespectful jokes regardless if the two females (who are of equal or higher grade) are in earshot or not. 50% of the men who work in this office are prior military folks who have a disrespectful attitude towards females and men without military experience. Despite being the “State Department” which is usually more liberal and tolerant, the Bureau that I work in is the exact opposite. It shows through upper management all the way down to the bullpen workers.” – See more at: https://www.inhersight.com/company/us-department-of-state#sthash.5rVrFJHX.dpuf

We asked the State Department about the gender composition of DSS agents in Diplomatic Security: 90.18% male and 9.82% female.  We also asked about the attrition rate by gender at the bureau. Below is what we’re officially told:

DS reports that they do not have information related to special agent attrition rate by gender. They do not keep those statistics, but note that the overall Special Agent attrition rate for 2015 was 3.66%.

The State Department’s DGHR should be able to run these numbers. That’s a very low attrition rate but — don’t you want to know who and why these employees are leaving?  If a bureau is overwhelmingly male, and if the entire attrition rate is, for instance, composed of all female employees, aren’t you going to wonder why?

But how would you know if you’re not even looking?

The InHerSight reviews are pretty broad but are troubling nonetheless. The first step in fixing a problem is recognizing that there is a problem.  Is there?

Who’s going to volunteer to look into this if we can’t even get S/OCR to respond to a public inquiry?

 

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Baloun v. Kerry: U.S. Equal Employment Protection Do Not Cover Foreign Employees of U.S. Embassies

Posted: 4:03 am ET

 

The U.S. Equal Employment Opportunity Commission (EEOC) is responsible for enforcing federal laws that make it illegal to discriminate against a job applicant or an employee because of the person’s race, color, religion, sex (including pregnancy), national origin, age (40 or older), disability or genetic information. It is also illegal to discriminate against a person because the person complained about discrimination, filed a charge of discrimination, or participated in an employment discrimination investigation or lawsuit.  Discrimination types includes:

Last year, State/OIG did an inspection (PDF) of the State Department’s Office of Civil Rights, an office that reports directly to the secretary of state and is tasked with the following:

… charged with propagating fairness, equity, and inclusion throughout the Department’s workforce. S/OCR answers to the Equal Employment Opportunity Commission (EEOC) and is charged with ensuring a nondiscriminatory workplace environment, investigating Equal Employment Opportunity (EEO) complaints and harassment inquiries, and working with the Bureau of Human Resources to implement federally mandated requirements in the Department’s diversity and disability hiring process. S/OCR is answerable to the EEOC, Congress, and other executive branch agencies in reporting on the Department’s standing in complaint and diversity statistics and recruitment planning.

The report includes a section labeled: EEO Liaisons for Locally Employed Staff Overseas

S/OCR has stepped up efforts to improve counseling and training for locally employed (LE) staff overseas. Providing EEO counseling to LE employees complies with Department policy in 3 FAM 1514.2 (a) and (d) rather than a regulatory mandate and is not included in S/OCR’s external reporting requirements. Nevertheless, in 2013 S/OCR began tracking counseling for these employees; the initial intake is recorded in the EEO counselor SharePoint site. The Intake and Resolution Section is also in the process of revamping LE counselor training; for example, having post EEO counselors train the LE liaisons and improving written training materials for LE staff. S/OCR believes these efforts have increased awareness among LE staff members and led to an increase in the number of complaints from them, although these numbers are not available, since the section only recently began tracking them.

The most recent OIG inspection of the U.S. Embassy in Tashkent, Uzbekistan (PDF) includes the following item on Equal Employment Opportunity:

The names and contact information of the EEO counselor and the EEO liaisons for the locally employed staff members were not publicized, as required by 3 FAM 1514.2a. OIG suggested that this information be added to mission bulletin boards. Also, OIG suggested EEO refresher training for the mission-wide locally employed staff and their EEO liaisons.

The OIG inspection report of the U.S. Embassy Japan (PDF) in 2015 include the following details:

In interviews, the OIG team learned that the embassy did not report three complaints of sexual harassment to the Office of Civil Rights as required. Although embassy officials had taken actions to address these complaints, they were unaware of this reporting requirement and told the OIG team they would report these allegations to the Office of Civil Rights. According to 3 FAM 1525. 2-1 c, supervisors and other responsible Department officials who observe, are informed of, or reasonably suspect incidents of possible sexual harassment must report such incidents immediately to the Office of Civil Rights, which will initiate or oversee a prompt investigation. Without adherence to this requirement, sexual harassment complaints could go unreported to the Department.
[…]
According to 13 FAM 312 c, EEO and diversity training is mandatory for all managers and supervisors, and all employees are strongly encouraged to participate in EEO and diversity awareness training or training containing an EEO and diversity module, on average, every 5 years. EEO and sexual harrassment complaints lower office morale and employee productivity. These compaints/cases are also time consuming and can be costly to settle.

These EEO and diversity trainings — do they include a part where non-U.S. citizen employees of U.S. embassies and agencies operating overseas are told they are not covered by EEO regulations?

So there are trainings and appointed EEOC liaisons but if a local employee file a case, post and the EEOC goes through the motion of investigating; and then sorry, non-U.S. citizens are not covered by these EEOC regulations? Isn’t this just a game of pretense? Below is an EEOC ruling extracted from publicly available court records:

Earlier this year, Dalibor Baloun, the former FSN of US Embassy Prague in this EEOC noncase filed an employment discrimination lawsuit against Secretary Kerry in the District Court for the District of Columbia with the notion — as indicated by the EEOC letter under the “right to request counsel” — that he could ask the court for an appointment of an attorney and waiver of other court costs.

Federal civil rights statutes expressly permit aliens to bring claims of civil rights violations in federal court. And the Sixth Amendment to the United States Constitution provides for the right of counsel in criminal prosecutions but it does not say anything about civil litigations. Has there ever been an instance when a U.S. court granted a a court appointed attorney for a foreign employee of a U.S. Government who is residing overseas? Or is that EEOC letter just template language?

We should note that while we do not have an exhaustive list of all discrimination claims filed against the State Department, we have only been aware of one case filed by a locally hired employee that prevailed in U.S. courts. That locally hired employee is also a U.S. citizen hired overseas.  See Miller v. Clinton: Amcit FSN takes State Dept to Court for Age Discrimination  and Miller v. Clinton: Court Says State Dept Not/Not Exempt from Age Discrimination Law.

 

Related items:

This Kind of Language Can Get One Suspended Without Pay in the Foreign Service

Posted: 1:25 am EDT

 

In FSGB Nos. 2014-041, the grievant, an FS-02 Foreign Service Officer with the Department of State, appealed the agency-level grievance decision upholding her three-day suspension without pay for improper personal conduct and poor judgment.  While the FSGB reduced the penalty to a Letter of Reprimand, the FSO had to grieved the case before the reduction of penalty:

While grievant was serving as Public Affairs Officer (PAO) at a U.S. Embassy, the Assistant Public Affairs Officer (APAO) filed an Equal Employment Opportunity (EEO) complaint alleging that grievant made numerous inappropriate and insensitive comments (many of which she overheard) – including several references to the national origin of some local and American employees; that she used harsh and profane language that made others uncomfortable in the workplace; and that she exhibited behavior that lacked professionalism, cultural sensitivity and good judgment. The EEO complaint triggered an Office of Civil Rights (S/OCR) investigation during which about a dozen local and American employees of the embassy were interviewed and signed affidavits. The S/OCR report was forwarded to the Office of Human Resources (HR/ER). The Department proposed to suspend grievant for five days without pay based on charges of improper personal conduct (seven specifications) and poor judgment (four specifications). The Deciding Official did not sustain three of the four poor judgment specifications and mitigated the penalty to three days. Grievant filed an agency-level appeal, which was denied.

Here are the things the FSO said which made the Department charged the employee with improper personal conduct and poor judgment:

Specification 1 – Grievant asked the APAO: “What’s the name of the Chinese guy who came to borrow a recorder, who speaks bad English?”

Specification 2 – After a telephone conference with State Department staff in Washington, grievant said to the APAO: “What the hell is that woman doing in that position! She’s not even a real American!” On the following day, grievant allegedly said again: “but this woman is not a real American!”

Specification 3 – In describing to the APAO an event at a previous post involving a naturalized U.S. citizen, grievant stated: “. . . she has a U.S. passport, but she is not a true American. She was Asian. In fact, I think she was Vietnamese.”

Specification 4 – The APAO overheard grievant say – in responding to a question from an  REDACTED employee of the Embassy about the children born to immigrants to the U.S.: “[T]hose immigrants are coming to the U.S. and having babies. Even though they grow up in the States, they are not culturally American.” Her comment in the workplace where she could be overheard was inappropriate.

Specification 5 – In the presence of an American colleague, the APAO, and other local embassy employees grievant shouted into her cell phone, “You f—ing c–t! You already ate?! You didn’t wait for me!” Her use of profanity was inappropriate.

Specification 6 – An American colleague stated that at a social event hosted by a senior Embassy official he had asked what the hostess meant in saying that as a college student she had been a “little sister” in a fraternity. Grievant explained to him – in earshot of several expatriates — that “it means you don’t have a gag reflex.” The American colleague interpreted this to mean that the “little sister” was obliged to perform oral sex on members of the fraternity. In this situation grievant’s comment was inappropriate.

Specification 7 – An English Language Fellow (ELF) reported that in a conversation with the ELF in an embassy vehicle driven by an  REDACTED employee of the embassy, grievant referred to REDACTED as “stupid” and “slow.”

The FSGB in this case finds that “the Department has not proved seven of eight specifications, included in two charges that were the bases for its decision to suspend Grievant for three days. With respect to the penalty, the Board finds that it has inappropriately applied the charge of Discriminatory Harassment as an aggravating factor with respect to the sole specification that has been sustained. The Department is directed to reduce the penalty to no more than a Letter of Reprimand, and to advise the Board of its actions within 30 days of receipt of this Decision.”

Read in full here (PDF) or read below:

 

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State Dept Security Officer Alleged Sexual Misconduct: Spans 10 Years, 7 Posts

— Domani Spero

 

One of the most serious allegations contained in the CBS News report last year include a regional security officer (RSO) reportedly assigned in Lebanon who “engaged in sexual assaults” with local guards.

The memo, reported by CBS News’ John Miller, cited eight specific examples, including allegations that a State Department security official in Beirut “engaged in sexual assaults” with foreign nationals hired as embassy guards and the charge and that members of former Secretary of State Hillary Clinton’s security detail “engaged prostitutes while on official trips in foreign countries” — a problem the report says was “endemic.”

USA Today reported that the regional security officer in Beirut allegedly sexually assaulted guards and was accused of similar assaults in Baghdad, Khartoum and Monrovia. Then-director of Diplomatic Security Service, called the allegations a “witch hunt” and gave agents “only three days” to investigate, and no charges were brought.

It turns out, according to State/OIG that this RSO already had “a long history of similar misconduct allegations dating back 10 years at seven other posts where he worked”

It boggles the mind … the RSO typically supervises the local guard force!

Seven posts! Just stop and think about that for a moment. This was the embassy’s top security officer; a sworn federal law enforcement officer who was responsible for the security of Foreign Service personnel, property, and sensitive information throughout the world.

Below is an excerpt from the State/OIG investigation. We regret if this is going to make you puke, but here it is:

The second DS internal investigation in which OIG found an appearance of undue influence and favoritism concerned a DS Regional Security Officer (RSO) posted overseas, who, in 2011, allegedly engaged in sexual misconduct and harassment. DS commenced an internal investigation of those allegations in September 2011.

However, at the time the investigation began, the RSO already had a long history of similar misconduct allegations dating back 10 years at seven other posts where he worked. A 2006 DS investigation involving similar alleged misconduct led to the RSO’s suspension for 5 days.

OIG found that there was undue delay within the Department in adequately addressing the 2011 misconduct allegations and that the alleged incidents of similar misconduct prior to 2011 were not timely reported to appropriate Department officials.7 OIG also found that, notwithstanding the serious nature of the alleged misconduct, the Department never attempted to remove the RSO from Department work environments where the RSO could potentially harm other employees, an option available under the FAM.8 Notably, the DS agents investigating the 2011 allegations reported to DS management, in October 2011, that they had gathered “overwhelming evidence” of the RSO’s culpability.

The agents also encountered resistance from senior Department and DS managers as they continued to investigate the RSO’s suspected misconduct in 2011. OIG found that the managers in question had personal relationships with the RSO. For instance, the agents were directed to interview another DS manager who was a friend of the RSO, and who was the official responsible for selecting the agents’ work assignments. During the interview, the manager acted in a manner the agents believed was meant to intimidate them. OIG also found that Department and DS managers had described the agents’ investigation as a “witch hunt,” unfairly focused on the RSO. Even though OIG did not find evidence of actual retaliation against the investigating agents, OIG concluded that these circumstances, including the undue delay, created an appearance of undue influence and favoritism concerning DS’s investigation and the Department’s handling of the matter.

Ultimately, in November 2013, based on evidence collected by DS and the Department’s Office of Civil Rights, the Department commenced termination of employment proceedings against the RSO. The RSO’s employment in the Department did not end until mid-2014, approximately 3 years after DS initially learned of the 2011 allegations.

 

The State/OIG report cleared Clinton’s chief of staff, Cheryl Mills, for allegedly interceding in an investigation by the Diplomatic Security Service concerning a nominee to be U.S. Ambassador. The Assistant Secretary of State for Diplomatic Security incumbent referred to below had been snared in the Benghazi-fallout, and resigned in December 2012:

The third DS internal investigation in which OIG found an appearance of undue influence and favoritism involved the unauthorized release in mid-2012 of internal Department communications from 2008 concerning an individual who was nominated in early-2012 to serve as a U.S. Ambassador. (The nominee’s name was withdrawn following the unauthorized release.) DS commenced an internal investigation related to the unauthorized release of the internal communications. The then Chief of Staff and Counselor to the Secretary of State was alleged to have unduly influenced that investigation.

OIG found no evidence of any undue influence by the Chief of Staff/Counselor. However, OIG did find that the Assistant Secretary of State in charge of DS had delayed for 4 months, without adequate justification, DS’s interview of the nominee, and that delay brought the investigation to a temporary standstill. OIG concluded that the delay created the appearance of undue influence and favoritism. The case was ultimately closed in July 2013, after the nominee was interviewed and after DS conducted additional investigative work.

No Undue Influence or Favoritism in Four Cases 

OIG did not find evidence of perceived or actual undue influence or favoritism in four of the DS internal investigations reviewed, and, in two of those four, determined that no further discussion was warranted. However, two cases are discussed further in this review because OIG found one common issue in both cases that requires remedial action—the failure to promptly report alleged misconduct to the DS internal investigations unit for further review.

Three DS special agents allegedly solicited prostitutes in 2010 while serving on the security detail for the Secretary of State. Although managers on the security detail learned of some of the alleged misconduct at or near the time it occurred, they did not notify the DS internal investigations unit, which normally handles such matters. A DS internal investigations agent only learned about the three cases while conducting an unrelated investigation. As a result, no action was taken to investigate the misconduct allegations until October 2011, 18 months after the first alleged solicitation occurred. As a result of the investigation then conducted, the three agents were removed from the Secretary’s security detail, and their cases were referred for further disciplinary action. One agent subsequently resigned; the allegations against the other two agents were not sustained.9

A DS special agent who worked in a domestic field office allegedly falsified time and attendance records over a 17-month period between January 2011 and May 2012. DS management in the domestic field office knew about the allegations but did not promptly report them to the DS internal investigations unit. In May 2012, during the course of an unrelated investigation involving the DS special agent, the DS internal investigations unit learned of the allegations of false time and attendance reporting. An internal investigation was then commenced, and the DS special agent subsequently resigned. DS also referred the matter to the Department of Justice, which declined prosecution of the case.

One footnote:

In the SBU report provided to Congress and the Department, OIG noted that one agent subsequently resigned; the allegations against a second agent were not sustained; and the third agent had initiated a grievance proceeding, which was pending, challenging the discipline determination. However, after the SBU report was issued, the Department advised OIG that the third agent’s grievance proceeding was resolved with a finding by the Foreign Service Grievance Board not sustaining the charges.

One Review Ongoing 

The eighth DS internal investigation reviewed by OIG concerned the use of deadly force during three incidents that took place during counternarcotics operations in Honduras in 2012. OIG has commenced a joint review with the U.S. Department of Justice, Office of the Inspector General. The investigation remains under review, and OIG will issue a separate report on the matter.

The above case was cited in the USA Today report:

“The Diplomatic Security Service said William Brownfield, assistant secretary of State for the Bureau of International Narcotics and Law Enforcement Affairs, “gave the impression” that a probe of the shooting deaths of four Hondurans involving the Drug Enforcement Administration should not be pursued. The case remained open when the memo was written, as the DEA would not cooperate.”

OIG Recommendations – open and unresolved

  1. The Department should take steps (as previously recommended in OIG’s report on the 2012 inspection (ISP-I-13-18)), to enhance the integrity of DS’s internal investigations process by implementing safeguards to prevent the appearance of, or actual, undue influence and favoritism by Department officials.
  2. The Department should clarify and revise the Foreign Affairs Manual and should promulgate and implement additional protocols and procedures, in order to ensure that allegations of misconduct concerning Chiefs of Mission and other senior Department officials are handled fairly, consistently, and independently.

The end.

 

Related posts:

 

Related item:

-09/30/14   Review of Selected Internal Investigations Conducted by the Bureau of Diplomatic Security (ESP-14-01)  [685 Kb] Posted on October 16, 2014

 

 

 

 

 

 

EEOC Affirms Class Action Certification For Disabled Applicants to the U.S. Foreign Service

— Domani Spero

 

In October 2010, we blogged that the Equal Employment Opportunity Commission (EEOC) has certified a class action brought on behalf of all disabled Foreign Service applicants against the U.S. State Department.  (see  EEOC certifies class action against State Dept on behalf of disabled Foreign Service applicants).

Related items:

Meyer, et al. v. Clinton (Department of State), EEOC Case No. 570-2008-00018X (September 30, 2010) (certifying class action based upon disability discrimination in State Department’s Foreign Service Officer hiring)

This past June, the EEOC affirmed the class certification for applicants to the Foreign Service denied or delayed in hiring because of their disabilities, based upon the “worldwide availability” policy.  (see Meyer v. Kerry (Dept. of State), EEOC Appeal No. 0720110007 (June 6, 2014)).

The State Department Disability Class Action now has its own website here.  Bryan Schwartz in San Francisco and Passman & Kaplan in Washington represented the class. The State Department’s Office of Legal Advisor and Office of Civil Rights represented the department.

Below is an excerpt from the class action website:

The EEOC decision found that the Class Agent in the matter, Doering Meyer, has had multiple sclerosis (MS) in remission for decades, without need for treatment, but was initially rejected outright for State Department employment anywhere in the world because the Department’s Office of Medical Services perceived that her MS might cause her problems in “a tropical environment.” This was notwithstanding a Board Certified Neurologist’s report approving her to work overseas without limitation.
[…]
The Department challenged the judge’s initial certification decision because, among other reasons, Meyer eventually received a rare “waiver” of the worldwide availability requirement, with her attorney’s assistance, and obtained a Foreign Service post. She is now a tenured Foreign Service Officer, most recently in Croatia, and being posted to Lithuania. Meyer’s attorney argued to the EEOC that she was still delayed in her career growth by the initial denial in 2006, and missed several posting opportunities over the course of an extended period, losing substantial income and seniority. The EEOC agreed with Meyer – modifying the class definition slightly to include not only those denied Foreign Service Posts, but those “whose employment was delayed pending application for and receipt of a waiver, because the State Department deemed them not ‘worldwide available’ due to their disability.”

Schwartz indicated that the case may ultimately have major implications not only for Foreign Service applicants, and not only in the State Department, but for all employees of the federal government abroad who have disabilities, records of disabilities, and perceived disabilities, and who must receive medical clearance through the Department’s Office of Medical Services. He noted that he has already filed other alleged class cases, also pending at the EEOC – one on behalf of applicants for limited term appointments (who need “post-specific” clearance, but are also denied individualized consideration), and another on behalf of employees associated with people with disabilities, who are denied the opportunity to be hired because of their family members who might need reasonable accommodations (or be perceived as disabled).

The Commission had also received an “Amicus Letter” from a consortium of more than 100 disability-related organizations urging the Commission to certify the class.

Read the full ruling at (pdf) Meyer v. Kerry (Dept. of State), EEOC Appeal No. 0720110007 from June 6, 2014 where the State Department contends that since this complaint was filed, the Office of Medical Services has changed many of its procedures in assessing “worldwide availability.”It also suggested that “many of those individuals who were found not worldwide available in 2006 maybe currently worldwide available under new definitions and procedures.”

The Commission, however, says that it “is not finding that changes made to the Medical Clearance process subsequent to the filing of the instant complaint have remedied any alleged discriminatory policy.”  

The order states (pdf): “It is the decision of the Commission to certify the class comprised of “all qualified applicants to the Foreign Service beginning on October 7, 2006, who were denied employment, or whose employment was delayed pending application for and receipt of a waiver, because the State Department deemed them not “world-wide available” due to their disability.”

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State Dept’s Employee Discrimination and Reprisal Statistics May Boggle Your Mind, Or Not

— Domani Spero

On May 15, 2002, then-President Bush signed into law the Notification and Federal Employee Anti-Discrimination and Retaliation (No FEAR) Act to increase federal agency accountability for acts of discrimination or reprisal against employees. This act requires that federal agencies post on their public Web sites certain summary statistical data relating to equal employment opportunity complaints filed against the respective agencies.  This data is updated quarterly.  The report ending on September 30, 2013 is posted below. This data is maintained and published by State/OCR and originally posted at state.gov here.

We should note that the Secretary of State has delegated both tasks of advancing diversity within the Department and ensuring equal opportunity to all employees to the Director of the Office of Civil Rights (S/OCR), an office headed by   John M. Robinson since March 3, 2008.

The total final finding of discrimination from 2008 to-date at the State Department has been one case of reprisal in 2011 out of 133 complaints, one case on race in 2012 out of 133 complaints and one case based on sex discrimination out of 152 complaints in the current year. Three cases of discrimination in favor of the complainant (two with a hearing and one without a hearing) in the last six years?  Single digit finding for the plaintiffs is not unheard of, is it?

If you are an employee with a possible EEO case, this FY2013 statistics is not hopeful.

Number of complaints: 152

Top five (complaints by basis):
reprisal (75), race (50), sex (40), disability (40)
age (36), national origin (21)

Top five (complaints by issue):
harassment/non-sexual  (55)
evaluation/appraisal (25)
promotion/non-selection (21)
disciplinary action (20)
assignment of duties (19)

Total Final Agency Action Finding Discrimination: 1

The average number of days in investigation is 276.89 days, the average number of days in final action is 259.14. When hearing was not requested, the average number of days in final action is 319.50 days.  Take a look.

The State Department has 13,787 Foreign Service employees and 10,787 Civil Service employees working domestic and 275 overseas missions as of March 2013. The S/OCR data does not include a breakdown of cases by employee type.

Also we were curious how other agencies handle this No Fear Act statistical requirement.  We found the Department of Treasury quite more elaborate in its reporting than the State Department. For instance, in FY2012, Treasury closed 61 EEO complaints with monetary corrective actions, totaling $792,477 in back pay/front pay, lump sum payments, compensatory damages, or attorney’s fees and costs.  The monetary component in the State Department’s  report is not even discussed.  At one point we were following the litigation between  FSO Virginia Loo Farris and the State Department (See  Farris v. Clinton: Race/Gender Discrimination Case Going to Trial).  On March 12, 2009,  United States District Judge Ricardo M. Urbina granted the defendant’s (Clinton/State Department) renewed motion for summary judgment with respect to Virginia Loo Farris’ retaliation claims but denies it with respect to the her discrimination claims. In October 2010, the case was dismissed after a settlement was reached between Ms. Farris and the State Department. Details of the settlement were not released.

Anyway, check out the FY2012 report from the Treasury Department here, the year-end data for the five previous fiscal years for comparison purposes actually are quite informative and includes real numbers besides zeros and ones.  It also includes the number of judgement for plaintiff (2), number of  employees disciplined for discrimination, retaliation, harassment, or any other infraction under the cited law (33), analysis of the complaints, data on counseling and alternative dispute resolution. The State Department’s No Fear Act report is absolutely bare bones, although it’s not alone in doing so.

If State/OCR has submitted a separate report to Congress detailing more fully its handling of EEO complaints in the State Department, including monetary corrective actions, we would like to see that information available to the public.

 

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Related posts:

Snapshot: State Department’s Permanent Workforce Demographics

Snapshot: State Dept Discrimination and Reprisal Complaints FY2008-FY2013

USCG Naples: Don’t Smile, You’re In the New York Post!

— By Domani Spero

The New York Post has been stirring up a super storm in Foggy Bottom. Following the CBS News scoop on alleged interference over DSS investigations, the NYPost let out the screaming kraken bubbling with all the allegations and names for all to see. On June 11, it has Hillary’s sorry state of affairs.  This was followed on June 13 with State Department has hired agents with criminal records, memo reveals. On June 14, Another State Dept. tryst and shout.  On June 15, Politician seeks answers on Weiner wife Huma Abedin’s private consulting gig.

Frankly, by Sunday, our eyeballs felt Mad Max crazy and weary.  But then another one burst on our screen:  Whistleblower accuses consul general of trysts with subordinates and hookers. Wait – whaaaat?

This latest allegation which concerns the U.S. Consul General in Naples is now reportedly part of an Equal Employment Opportunity complaint filed with the State Department’s Office of Civil Rights.  The complainant according to the New York Post is Kerry Howard, a former Community Liaison Officer (CLO) at USCG Naples. CLO positions are typically filled by eligible family members (EFMs) accompanying their FSOs on assignments overseas.  We should note that the position is currently vacant in the latest Key Officers List.

US Consulate General Naples, Italy Photo via USCG/FB)

US Consulate General Naples, Italy
Photo via USCG/FB)

Excerpt via the NYPost:

[A] whistleblower claims she was run out of the foreign service after complaining about a consul general’s alleged office trysts with subordinates and hookers.

Kerry Howard says she was bullied, harassed and forced to resign after she exposed US Consul General Donald Moore’s alleged security-threatening shenanigans in the Naples, Italy, office.

As the post’s community-liaison officer, Howard was charged with keeping workplace peace and advising higher-ups on the state of morale, but when she revealed allegations about her boss, State Department officials swept it under the rug, according to an Equal Employment Opportunity complaint she filed with the department’s Office of Civil Rights.
[…]
The soap opera in Italy unfolded in the fall of 2010, when Moore became the Naples consul general after serving in the same capacity at the US Embassy in Port au Prince, Haiti. As a senior foreign-service officer, Moore could make as much as $179,700 a year, State Department data says.

[…]
With the affair rumors swirling, Howard’s supervisor, Pamela Caplis, instructed Howard to keep quiet, Howard claims.

“I have already informed Frankfurt,” Caplis allegedly said in what Howard claims was an attempt to head off the complaint.

Still, on a February 2011 trip to Rome, Howard told the US Embassy’s management officer, Frank Ledahawsky, that morale was “very bad” because of the alleged affair.

“We have to save his career,” Ledahawsky allegedly said.

Shortly after the meeting, Moore was allegedly called to Rome and ordered to end his relationship with the employee.

Howard thought her troubles would be over, but she became a target instead.

Read in full here.

According to his official bio, the official referred to in the EEO complaint is a career member of the Senior Foreign Service, Class of Counselor. He joined the Foreign Service in 1992 after serving as an Assistant State Attorney for the 15th Judicial Circuit in Florida.

The  CLO’s supervisor is normally the management officer/counselor at post.  At one point in 2011, Ms. Caplis named in the report was also the acting Consul General in Naples.  Another officer mentioned in this report Frank J. Ledahowsky, is the management counselor at the US Embassy in Rome.  Mr. Ledahowsky arrived in Rome in August 2008 according to the OIG report on US Mission Italy.  The inspection report is dated 2010 and included an inspection conducted on USCG Naples between February 23 and March 2, 2010 prior to the tenure of Mr. Moore.

The US Mission in Italy (including the constituent posts in Florence, Milan and Naples) is under the authority of Ambassador David Thorne who has been the United States Ambassador to Italy and Ambassador to San Marino since 2009.  He is also the twin brother of Julia Thorne, Secretary Kerry’s first wife.  Douglas C. Hengel is Deputy Chief of Mission for the U.S. Embassy in Rome, a position he assumed in November 2010. The DCM is typically the supervisor and rating officer of the principal officers of constituent posts.

Since this is an Office of Civil Rights case, it is doubtful that we’ll ever get to read the affidavits apparently executed by seven former Italian consulate employees used in support of this complaint.  Should be interesting to see how this ends. The OCR  investigation into this allegation is reportedly nearing its conclusion.

Is it just us or do you get a feeling that we have crossed into a whole new world of reality?  It looks like keeping a stiff upper lip as was “standard” diplomatic practice has now become as outdated as your ancient Wang machine.  We can’t say if this trend becomes a tidal wave but we noticed that we now have almost about *half a dozen State Department whistleblowers, some self-proclaimed , and it’s only June.

* (Mark Thompson (State/CT), Gregory Hicks (former DCM, US Embassy Tripoli), Eric Nordstrom (former RSO, US Embassy Tripoli)Kerry Howard (former CLO, USCG Naples)Aurelia Fedenisn (former OIG), Richard Higbie (DS, Texas).

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Snapshot: State Department’s Permanent Workforce Demographics

Via State Magazine, January 2013:

State_012013_demographics

In the same article where the above stats is extracted, the Office of Civil Rights says that “the Department
wants its workforce to reflect the diversity of the country we represent to the world.”  It also reports the EEO complaints for fiscal year 2012:

Formal complaints: 133

Top three protected bases:
reprisal (57), race (40) and sex (38)

Top three issues:
non-sexual hostile work environment (51)
performance evaluation/appraisal (19)
promotion/non-selection (18)

Findings of discrimination: 3

And — to State Department-affinity groups who requested the demographic stats from DG/HR and are repeatedly told that this is not available, you’ve got one stop if DG/HR would not budge – the  Office of Civil Rights, S/OCR, Room 7428, Department of State, Washington, DC 20520; Email: socr_direct@state.gov Tel: (202) 647-9295 or (202) 647-9294, Fax: (202) 647-4969.  An executive agency’s workforce demographics is not protected, secret information and should be public record, good grief!

domani spero sig