EEOC: US Embassy Yemen FSN Discrimination Claim Over Denial of Overtime Fails

 

This is an instructive case for local employees of U.S. missions overseas. Even during a crisis, especially during a crisis, during chaos, even during evacuations, if a local employee is tasked to do work outside or normal work hours, there must be overtime pre-approval by the the supervisor (typically this means the American officer-supervisor).   In this EEOC case, the local employee claimed 1,952 hours of overtime for work purportedly done from 2015-2019. Without documented pre-approval by the American supervisor, Uncle Sam is not obligated to pay.
Even if a supervisor  or some other embassy official asked for work to be done; even if work was actually done as requested …if there’s no record or documentation regarding the overtime requests or preapproval for the overtime “as required”, there would be “no basis to grant the overtime pay.”
All good supervisors and decent human beings hopefully will ensure that pre-approvals are made and granted before any work requests are made of the local staff. Otherwise, you’ll be asking, and no one will be paying …. and that would disturb one’s conscience. Or should.
Via EEOC Appeal No. 2020003186:
At the time of events giving rise to this complaint, Complainant worked as a Defensive Security  Coordinator, Grade 10, at the Agency’s U.S. Embassy in Yemen. On April 30, 2019, Complainant filed an EEO complaint alleging that the Agency discriminated against him and subjected him to a hostile work environment on the bases of race (Arabian) and national origin (Yemen) when:

1. Complainant was denied overtime compensation for work he performed since 2015, and as recently as April 3, 2019;

2. Complainant has been denied a higher base salary level commensurate with his other American citizen colleagues; and
3. He was subjected to a hostile work environment, characterized by, but not limited to, his supervisor’s requests that he return his U.S. government-issued vehicle.  The most recent request was March 18, 2019.
Complainant was hired by the Agency in 2010, as a Local Hire under the Local Hire Program at the U.S. Embassy. Complainant has dual citizenship; he was born in Yemen and became an American citizen on September 22, 2006. He averred management knew his race and national origin because he was a Local Hire.

Claim 1 – Denial of Overtime (OT) Compensation since 2015

Complainant claimed that he held two different positions with the Agency. First, Complainant stated that he performed Defensive Security Coordinator duties from January 2014 to July 2019. Complainant stated that he had been granted overtime for years in this position prior to the Embassy’s evacuation in 2015. Secondly, Complainant claimed that he performed Regional Security Officer (RSO)/Team Lead duties from February 2015 to November 2015. Complainant claimed that his duties increased after taking on that role. Complainant alleged that he was called at all hours of the day and night.


On February 12, 2015, the Embassy where he worked was forced to evacuate. Shortly thereafter, in March, war ensued. After Complainant worked to coordinate the evacuation, he returned to the U.S. The Embassy suspended operations in 2015. The record indicates that Complainant’s entire work history was destroyed along with all other employee files that were kept onsite. The record indicates, however, that he remained on the Agency rolls until July 2019.


Complainant stated that after the evacuation, his work continued and he says his responsibilities escalated, but he was not fairly compensated. Complainant alleged that he sent an email to management officials, including his supervisor at the time (S1-2), listing all of the dates he worked overtime but he received no response. Further, Complainant claimed that he was told that they would try to process it, but he might have to wait until the Embassy reopened.


S1-2 acknowledged that Complainant held the Defensive Security Coordinator position and was eligible for overtime, but only with a prior authorization from his supervisor. He averred that he was the one to approve, but he averred “no requests for overtime were made.” S1-2 further confirmed, however, that Complainant provided information in support of his claim for 1,952 hours of overtime. S1-2 said that he forwarded the overtime claim to the Department and asked Complainant for further documentation.


Complainant submitted an email to his supervisor regarding his overtime on December 12, 2018, and after he did not receive a reply, he reached out to the Office of Civil Rights.

He received a reply on April 3, 2019. In the response, S1-2 informed Complainant that there was no record or documentation regarding his overtime requests or preapproval for the overtime as was required. Therefore, there was no basis to grant the overtime pay.

Claim 2 – Denial of Higher Compensation Given to American Colleagues

While working in the RSO section, Complainant believed that he was entitled to a higher base salary. Complainant averred that he should have received a new contract, inasmuch as he was promised a promotion. Complainant alleged that his former supervisor (S1-1) tasked him with controlling everything but did not ensure that he was compensated fairly. In addition, Complainant alleged that numerous officials over the years failed to ensure that he was compensated fairly or transition his job status. Complainant asserted that all of the issues stemmed from the fact that he was hired as a Locally Employed Staff. Complainant averred that, unlike his non-Arabian colleagues, he had to pay for his family to evacuate Yemen because of the war, but the government paid for the other employees’ families to evacuate. Complainant state that he was also put on at least one Reduction-in-Force list, but the notice was rescinded.
[…]
Complainant averred that he thought he could “work his way up” because of his American citizenship status. He acknowledged that he was hired as a Locally Employed Staff employee, which does not have a Career Ladder progression.

Claim 3 – Hostile Work Environment/Demand for Vehicle Return

Before the February 2015 evacuation of the Embassy where Complainant worked, he had been assigned a vehicle. The car is still parked at his relatives’ home in Yemen. When he and others were forced to flee in 2015, it was assumed that he would be able to come back in about a month.
He averred the Agency stopped him from going back because of the risks for him. On February 4, 2019, S1-2 issued a directive that the car be returned to service. The two communicated via email during the period February 23, 2019 to March 14, 2019. Complainant told him that he
feared his family would be placed in danger if the vehicle was retrieved. To protect his family still in Yemen, Complainant asked for certain safeguards. There were no further communications after April 2019.
[…]
In the decision, the Agency found that Complainant was not subjected to discrimination as alleged.
[…]
Upon review of the record, we find that Complainant has not presented sufficient argument or evidence to establish that the Agency’s explanations for its actions were pretext intended to mask discriminatory motivation. As a result, we find that Complainant was not subjected to the discrimination as alleged.

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Despite shutdown, Pompeo to go on with ambassadors conference to meet his 180+ field commanders, to look them in the eye

Also, who’s fast depleting  Diplomatic Security’s residual funds?

 

Secretary Pompeo told reporters at his stop in Abu Dhabi that morale at the State Department is good despite the shutdown (see Pompeo says “morale is good”. C’mon now, it’s swaggeryfuck good!). It’s so good that despite the shutdown, and State Department personnel being furloughed or working with no pay, he will still host the ambassadors’ conference, officially called the Global Chiefs of Mission Conference in D.C. next week. Via AP:

“It’s something that we’ve had teed up for a while,” he said. “It is incredibly important that they hear directly from me. It’s an important opportunity for me to get in front of 180-plus of my commanders in the field to look them in the eye and describe to them what it is we’re doing and how it is I expect them to do that.”
[…]
Almost half of the State Department employees in the United States and about one-quarter abroad have been furloughed during the shutdown. With the exception of certain local employees overseas, the rest are working without pay, including those tasked with supporting Pompeo’s trip, which has thus far taken him to Jordan, Iraq, Egypt and Bahrain.

An excerpt from Secretary Pompeo’s January 11 message to agency employees posted on the state.gov website also says this:

We are also committed to hosting the Global Chiefs of Mission Conference in Washington, D.C. next week. Bringing together the men and women who lead our overseas diplomatic missions is essential to successfully achieving our unified mission of advancing America’s foreign policy.

Even though the Secretary’s people are quite prolific, that’s  the only Miles With Mike update we’ve seen posted online. The message is posted under  the “M” press releases but not even clearly labeled. We are guessing that we’re seeing this in the public website because furloughed employees do not have access to their government email.

In any case, the State Department — despite the poor, no good, terrible optics — will go on with the Global Chiefs of Mission conference come rain or shine, shutdown or not, rapture or not, pay or no pay. Below via FP:

The State Department has decided to move forward with a major conference for all U.S. chiefs of mission and ambassadors abroad—there are 188—who will descend on Washington from Jan. 15 to 18 for a slew of meetings and receptions. Organizing the conference is a massive logistical undertaking, and bureaus at the State Department are pulling in furloughed employees to work overtime, with no pay, to set up the conference.
[…]
The spokesman noted travel for conference was arranged and funded prior to the government shutdown. The spokesperson called the timing of the conference “crucial to the safety, security, and prosperity of the United States” and added: “Given that the Senate has just confirmed 23 ambassadors, this conference is particularly important and timely in helping them get off to the right start as they assume their duties immediately.”

Just because this was funded before the shutdown, doesn’t mean they absolutely must go on with it during the shutdown. Are they afraid that this shutdown will go on for years, and there will not be a 2019 GCOM conference? The spox called the timing of this conference “crucial to the safety, security, and prosperity of the United States”, then my golly, what do we call the timing of the shutdown that’s now entering its fourth week?

Also the latest ambassador confirmations — except for the two going to Australia and Kenya respectively, are all career diplomats who are not going on their first overseas appointments. Using them as an excuse is just lame, yo!

As of January 4, President Trump has made 136 ambassadorial appointments (67 political and 69 career appointees).  The State Department’s new  Furlough Guidance notes the pay status/exception for Presidential Appointees:

According to OPM, individuals appointed by the President, with or without Senate confirmation, who otherwise are not subject to 5 U.S.C. 6301 and attendant regulations governing leave in the Federal service, are not subject to furlough. The salary of such a Presidential appointee is an obligation incurred by the year, without consideration of hours of duty required. Thus, the Presidential appointee cannot be placed in a nonduty, nonpay status. If a Presidential appointee, however, chooses to be in a nonpay status, the appointee may return part of his salary to the employing agency, provided that the agency has authority to accept gifts, or to the Treasury. Regardless of the Presidential appointee’s choice, the appointee’s entire salary is recorded for tax purposes. The following exceptions must be noted: former career Senior Executive Service (SES) appointees who took appointments at level V of the Executive Schedule or higher and elected to retain SES leave benefits under 5 U.S.C. 3392(c), are subject to furlough at the discretion of the agency. Also, Presidential appointees to positions requiring Senate confirmation, for example ambassadors, who choose to retain SFS/SES pay and benefits are subject to furlough at the discretion of the responsible Assistant Secretary, e.g. when absent on leave.

So the political appointees attending this big do in D.C. will be on paid status, while career appointees including approximately 50 chargé d’affaires are possibly deemed onduty and on nonpay status. All participants are flying to D.C., staying at DC hotels, and will have meal & incidental expenses paid for. The event will be supported by either employees working with no pay, or furloughed employees recalled “to work overtime, with no pay, to set up the conference.”

Of course, we can imagine that the support staff will be pumping with pride and joy — and who wouldn’t?

Here they are living the life they’ve always wanted, their dysfunctional government without care is in shutdown, they’re working with no pay, and they are supporting the 70th secretary of state meeting his 180-plus commanders in the field so he can look them in the eye, before he send them off to battle.  Or something. There will be talks, and at some “glitzy cocktail receptions at four-star hotels” (reportedly not organized or paid for by the State Department), there will be food, and drinks for the guests and the field commanders. There will be photos, of course, except — wait, are official photographers considered “essential” for this event?

If morale is “good” now, we can imagine it will be fuckityfuck great when this is all over. Now, you don’t need a survey to know that so no need to hire $M-dollar consultants to perform a survey on morale after the GCOM.

Meanwhile, about the Diplomatic Security’s residual funds …

We’ve blogged previously about what accounts are funded at the State Department during the shutdown.  One of those funded is Diplomatic Security which has already urged begged posts for the “prudent use of overtime” to slow down the drawdown of its residual funding. We don’t’ know how much “available balance” is there in this bureau.  But we’ve wondered out loud (others quietly) how long will the State Department be able to pay for its local employees including local security guards at 277 overseas posts without regular funding? See #TrumpShutdown Enters 18th Day, At Least $2.5B in Costs and Counting, With No End in Sight. For potential cascading impact if Diplomatic Security is unable to make payroll for guards, see What happens after pay period #26?

Secretary Pompeo has been on foreign travel from January 8-15. The trip is taking him and his wife to 1) Amman, Jordan; 2) Baghdad, Iraq; 3) Erbil, Iraq; 4) Cairo, Egypt; 5) Manama, Bahrain; 6) Abu Dhabi, United Arab Emirates; 7) Doha, Qatar; 8) Riyadh, Saudi Arabia; 9) Muscat, Oman; and 10) Kuwait City, Kuwait.

Not only are essential/not paid employees supporting this travel, Diplomatic Security agents from the State Department and at these overseas locations must be racking up their overtime. How much overtime? Somebody please FOIA that.

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