The following cases are extracted from the Foreign Service Grievance Board’s 2019 Annual Report dated February 2020:
The grievant in FSGB Case No. 2019-045 was assigned to a country where the Zika virus was widespread. When his wife became pregnant, she was medically evacuated from the post. When the pregnancy ended in a miscarriage, State/MED contacted grievant’s wife and instructed her to forward the results of genetic testing done on the fetus, and she complied. Grievant claims that the Department gained access to these records under false pretenses and shared them in violation of the Genetic Information Nondiscrimination Act (GINA). He has asked that State/MED destroy the records. The Department has asserted that the Board lacks jurisdiction over the claims, and that grievant’s redress is through the Privacy Act.
The grievant in FSGB Case No. 2019-036 is an employee of the U.S. Agency for Global Media (USAGM), formerly the Broadcasting Board of Governors. He was hired in a position that had a salary cap of FP-02. In 2012, grievant was assigned to a position designated FP1/SFS (Senior Foreign Service). Grievant claims that at the time it was agreed that a mechanism would be found to lift the cap so he could compete for promotion to the higher grade. In 2012, a personnel form SF-50 was issued showing a skill code change to effect the desired change in status. Subsequently, however, the Human Resources Office advised grievant that the conversion was done incorrectly and that he was not eligible for promotion until the issue was resolved. Grievant claims that despite repeated requests from him, nothing has been done.
The grievant in FSGB Case No. 2019-020 claims that the Department retaliated against him when he questioned three grant activities involving his predecessor on the grounds of conflict of interest and violations of the ethics regulations. He claims that, as a consequence, his responsibilities were reduced and, ultimately, he was asked to curtail from post.
FSGB Case No. 2019-008 involves four claims, one of which is being resolved separately. In the first three claims, grievant challenges the Developmental Areas of three EERs and a low-ranking statement. In the fourth claim, grievant contends that his security clearance was wrongfully suspended and revoked. Although his clearance has subsequently been reinstated, he claims that harm to his career resulted.
In FSGB Case No. 2019-052, the grievant was assigned to a country in which the ambassador was a political appointee of the previous administration. Grievant believed she enjoyed good relations with him, despite a number of difficult issues the embassy encountered. However, when the ambassador chose to leave post early, he advised grievant that he was requesting her involuntary curtailment. On the advice of colleagues, she instead opted for a voluntary curtailment. She claims that although she was told by post management at the time that she would not be receiving an EER, she was later given one for a four-month period. That EER was the basis for a low ranking. Grievant claims that the EER includes a number of falsely prejudicial statements as well as procedural errors.
The grievant in FSGB Case No. 2019-040 is a female officer who claims that an EER she received is the result of gender bias and retaliation on the part of her rater. The EER formed a basis for low ranking.
The grievant in FSGB Case No. 2019-039 was the subject of an investigation, on the basis of which the Department originally recommended a 45-day suspension. While the charges were pending, the grievant was reached for promotion; however, the promotion was withheld pending the close of the disciplinary proceedings. Grievant was advised at the time that if the charges were resolved satisfactorily, his promotion would be made retroactive. At the close of the disciplinary procedures a number of years later, the penalty was reduced to a letter of admonishment. However, the Department maintains that the White House currently will not forward recommendations for retroactive promotions to the Senate for confirmation. It therefore forwarded a recommendation for promotion in 2019, not to be retroactive. Grievant claims back pay and benefits to the time he was reached for promotion.
The grievants in FSGB Case No. 2019-021 are new FSOs hired while already living in the Washington, DC area. They claim that they were improperly denied locality pay while assigned to long-term training prior to their first overseas assignments.
The grievant in FSGB Case No. 2019-024 is part of a tandem couple. When she was assigned to her first overseas post, her husband was granted Leave Without Pay to accompany her. According to State regulations, his official assignment was therefore Washington, D.C. Grievant and her husband returned to Washington after that assignment, in transit to their next post, where she took home leave and annual leave and had four months of language training. Rather than considering grievant as being on TDY and thus entitled to receive per diem, the Department classified her as having the same status as her husband, a Washington-based assignment, in accordance with its Standard Operating Procedures (SOP) on tandem couples. Grievant contends this is a violation of Department regulations, which treat each member of the Service as individuals entitled to their own benefits. Approximately one year after the grievance was filed, the Department, with AFSA approval, modified the operative SOP to permit tandem employees in grievant’s circumstances to be on TDY and receive per diem; however, the Department maintains that the modification was not retroactive and, therefore, does not apply to grievant.
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?”
Posted: 12:18 am ET
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The Foreign Service Grievance Board (FSGB) wants to know.
In December, it granted the unnamed auditor’s (the charged employee) Motion for Additional Discovery. USAID/OIG was ordered to produce the investigation files of both Mr. REDACTED and Ms. Lisa Mcclendon, the Deputy Assistant IG for Investigations at USAID OIG. Below is a quick summary of this case extracted from the publicly available records of the FSGB:
REDACTED, was employed by the United States Agency for International Development in the Office of the Inspector General (USAID OIG, agency) as a financial auditor in REDACTED from 2009 to 2011. During that time, she was assigned, inter alia, to audit two USAID programs (a REDACTED HIV/AIDs program in 2010 and a REDACTED Family Planning/Contraceptives program in 2011). The charged employee stated that she was prepared to make negative findings about both programs, alleging a waste of $120 million and $100 thousand dollars in each program, respectively. The OIG responded that the employee’s audit manager,REDACTED, and the Regional Inspector General, REDACTED, overruled her negative findings on grounds that they were erroneous and/or did not need to be included in the audit reports.
On June 9, 2011, an anonymous or confidential complaint was delivered to the REDACTED USAID OIG office, stating that the charged employee was submitting partially false vouchers for two-way education transportation reimbursement, because her husband was driving the children to school in the mornings. REDACTED, an investigator in REDACTED received the complaint and after consulting with an Assistant Special Agent in Charge in Washington, D.C., REDACTED, arranged for a Regional Security Officer (RSO) to follow Mr. REDACTED in the mornings to confirm that he was driving the children to school. The investigator also requested copies of the education transportation vouchers that showed that Ms. REDACTED had requested reimbursement for the cost of transporting the children to and from school.
Several weeks later, Lisa McClennon, the Deputy Assistant IG for Investigations, traveled to REDACTED allegedly for a routine site visit. When she arrived and reviewed the pending investigations, she testified that she concluded that REDACTED investigation “had not progressed.”2 She took over the investigation, interviewed more than a dozen witnesses and requested a large number of financial documents that Ms. REDACTED had submitted for reimbursement. Ms. McClennon stated that when she reviewed the documents and interviewed the witnesses, she concluded that the employee had submitted a number of false vouchers for reimbursement of educational travel expenses, a number of requests for cost of living allowance (COLA) payments to which she was allegedly not entitled, and a request for larger housing to which she was also allegedly not entitled.
(Note: WHOA! — requesting larger housing is against the rules? Isn’t that for the Housing Board to decide on entitlement? Active link and emphasis added above).
Ms. McClennon reported her findings to Mr. Carroll in Washington. He ordered Ms. REDACTED immediate curtailment, despite the fact that at that time she was away from post with her family. In addition, Mr. Carroll proposed to separate Ms. REDACTED from the Service for cause. After reviewing written and oral replies from the charged employee, Mr. Carroll recommended in a letter, dated August 3, 2012, that the employee be separated for cause.3 Ms. REDACTED responded to the recommendation by arguing that the investigation and the resultant charges were retaliatory based on her status as a whistleblower when she attempted to report negative findings in the REDACTED and REDACTED audits.
Before the Board was able to issue a final order,5 however, the employee filed a motion on November 14, 2014, advising the Board that Mr. Carroll had withdrawn his name from consideration for the position of IG and the President had formally withdrawn his name from consideration by Congress on November 12, 2014.6 The motion sought leave to file a supplemental pleading and to reopen discovery based on newspaper articles that reported that Mr. Carroll was accused by OIG auditors (not including Ms. REDACTED of putting pressure on them to modify audit reports in order to delete negative findings about USAID. In addition, the charged employee requested the opportunity to depose Mssrs.REDACTED and REDACTED.
- The Board initially came to the conclusion that Mr. Carroll did not have authority to prosecute this matter because his term as Acting IG expired before he recommended Ms. REDACTED for separation. The case was then dismissed. However, in 2013, Mr. Carroll was nominated to be the IG for USAID. Thus, he again became the Acting IG, pursuant to the Federal Vacancy Reform Act (FVRA) of 1998, 5 U.S.C. § 3345 et seq. As Acting IG, Mr. Carroll ratified his earlier recommendation to separate Ms. REDACTED for cause and the grievance appeal was reinstated.
- Mr. Carroll retired from the Foreign Service, effective December 31, 2014.
- Ex-USAID/OIG Pakistan: Finding fully developed for final report, whatchatalkinbout? Nov 2014
- USAID OIG: “The office is a watchdog not doing its job” — IG Nominee Withdraws Name Oct 2014
- Dear USAID OIG — That Nonprofit Contractor Mess Really Needs a Fact Sheet March 2015
- USAID Finally Gets an Inspector General 1,496 Days After Job Went Vacant Nov 2015
- Conspired to Defraud Uncle Sam? Be Very Afraid. We’re Gonna Put You in Home Confinement! May 2015
- USAID/OIG Highlights Challenges to the Management and Administration of Foreign Assistance Apr 2016
Posted: 10:52 am EDT
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Excerpt from Civil Action No. 14-727 (JDB) by Judge John D. Bates of the United States District Court of the District of Columbia:
Kerry Howard, a former Community Liaison Officer at the American consulate in Naples, did not enjoy her working environment. That is an understatement, to be fair: she refers to it as a “cesspool.” Pl.’s Opp’n [ECF No. 21] at 3. In this suit, Howard asserts that she suffered from a hostile work environment that was discriminatory to women, and from discrete instances of retaliation for her attempts to aid fellow employees. But these claims do not match precisely with those she raised during the administrative process. As a result, some must be dismissed, based on the defendant’s motion to do so.
Here, Howard filed administrative charges alleging only two discrete retaliatory acts: her poor evaluation on April 19, 2012, and being placed on a performance improvement plan that same day. See Notice of Dismissed Allegations [ECF No. 13-2] at 5. Both were dismissed administratively for failure to contact an EEO counselor within forty-five days, as required by the first step of the exhaustion process. See id. Since then, however, it has become clear to both parties that Howard did timely request an EEO counselor on May 7, 2012—regarding her performance improvement plan. See Pl.’s Supp. at 2; Def.’s Resp. at 3. This claim was therefore appropriately exhausted. The Court will accordingly deny defendant’s motion to dismiss as to the retaliation claim regarding that performance improvement plan.1
Odious the allegations may be—but Title VII “does not set forth a general civility code for the American workplace.” Burlington, 548 U.S. at 68 (internal quotation marks and citations omitted) (citing precedent that courts “must filter out complaints attacking the ordinary tribulations of the workplace, such as the sporadic use of abusive language” (internal quotation marks omitted)). Thus, the Court will grant the government’s motion to dismiss the remainder of Count I.
More straightforward is the government’s assertion that Howard failed to exhaust her hostile work environment claim. In the hostile work environment context—as opposed to discrete instances of retaliation—it is settled that claims “like or reasonably related to the allegations of the administrative charge may be pursued in a Title VII civil action, notwithstanding the failure to otherwise exhaust administrative remedies.” Bell, 724 F. Supp. 2d at 8 (internal quotation marks, citation, and alteration omitted); see also Morgan, 536 U.S. at 115 (“Hostile environment claims are different in kind from discrete acts.”). “A new claim is ‘like or reasonably related’ to the original claim if it ‘could have reasonably been expected to grow out of the original complaint.’” Bell, 724 F. Supp. 2d at 8–9 (quoting Weber v. Battista, 494 F.3d 179, 183 (D.C. Cir. 2007)).
“Claims of ideologically distinct categories of discrimination and retaliation, however, are not ‘related’ simply because they arise out of the same incident.” Id. at 9 (internal quotation marks omitted). As this Court has pointed out before, “[t]he EEOC charge form makes it easy for an employee to identify the nature of the alleged wrongdoing by simply checking the labeled boxes that are provided. When an employee is uncertain which type of discrimination has occurred, she need only describe it in the text of the charge form.” Williams v. Spencer, 883 F. Supp. 2d 165, 174 (D.D.C. 2012) (internal quotation marks and citation omitted). In Howard’s formal complaint, she checked the box for reprisal—not for sex discrimination. See Formal Compl. of Discrimination [ECF No. 13-1] at 2. And the explanation she attached to the form similarly focuses on reprisal alone. See id. at 3–4. Thus, “[t]o the extent that [Howard] is attempting to claim that [the hostile work environment] was discriminatory based on [sex], as opposed to retaliatory, [the government] is correct that [Howard] did not exhaust her administrative remedies.” Williams, 883 F. Supp. 2d at 174. As a result, the Court will grant the government’s motion to dismiss as to Count II (hostile work environment based on discrimination).
Read in full at https://ecf.dcd.uscourts.gov/cgi-bin/show_public_doc?2014cv0727-25.