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Howard v. Kerry: Court Denies Motion to Dismiss One Retaliation Claim

Posted: 10:52 am EDT

 

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.

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Howard v. Kerry: USCG Naples EEO Case Now a Civil Lawsuit in Federal Court

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— Domani Spero

Kerry Howard’s allegations against the former Consul General in Naples made the news last year (see NYPost – State Department swept sex scandals under the rug and Whistleblower accuses consul general of trysts with subordinates and hookers).

Kerry Howard’s LinkedIn profile indicates that she has been in Naples, Italy since January 2008.  The court document also says that she is the spouse of an FSO who was employed as Consulate General Naples’ Community Liaison Officer from February 2010 to May 2012.  Ms. Howard has now filed a lawsuit against Secretary of State John Kerry in the Eastern District of New York (Case 2:14-cv-00194-ADS-AKT):

“Title VII of the Civil Rights Act of 1964 forbids employment discrimination based on race, color, religion,  sex or national origin. (42 USC 2000e-2(a)  and its anti retaliation provision forbids discrimination against an employee or job applicant who inter alia has “made a charge,  assisted or participated in a Title VII proceeding or investigation. Section 2000e-3(a)

An employer which creates or tolerates a work environment  permeated with discriminatory intimidation,  ridicule and insult that is sufficiently severe or pervasive to alter the terms and conditions of an individual’s employment and which creates an abusive work environment is in violation of Title VII.”

Screen Shot 2014-01-14 at 10.36.20 PM

The NYPost currently has a screaming headline that runs, American diplomat ran consulate like party pad: suit. The report says that the official “has since been reassigned from the Italian post to a position at the Air War College in Montgomery, Alabama, which is also administered by the State Department.” Huh?

While the lawsuit is against Secretary Kerry as head of the agency, if this go to trial, there presumably will be a long list of witnesses from the who’s who at USCG Naples and US Embassy Rome a the time when this incident is alleged to have occured.  The court filing includes the names and positions of several officers in Naples, Rome and the State Department, including the then Deputy Chief of Mission in Rome, the then FLO director, and an FS couple who was alleged to have been “blacklisted” for services at post and alleged to have been subsequently “involuntarily curtailed” from Naples.

Remember last summer’s CBS scoop on allegations by OIG investigator Aurelia Fedenisn over interference of politically delicate investigations at the State Department?  According to NYT,   that report became public as a result of  … that’s right, another civil suit, this one filed in 2011 by Richard P. Higbie, a diplomatic security agent who accused the State Department of blocking his career. “His lawyers sought the department’s internal documents after Aurelia Fedenisn, a former investigator who worked on the inspector general’s report, complained that the final draft had been toned down.”   We can’t imagine what stuff will come out of this case which includes allegation that the State Department “indifference” to a senior official’s misconduct  “gave consent to the creation of working conditions for women which could be so difficult, unpleasant or intolerable that a reasonable person would feel compelled to resign.”  

In a 19-page complaint demanding jury trial, Ms. Howard asks for reinstatement, full value of compensation and provide the retroactive benefits including those incident to full year service rights to other government positions she would have received had she not been the victim of unlawful discrimination,” compensatory and liquidated damages in the amount of $300,000, and the costs and expenses of litigation including reasonable attorney’s fees and witness fees.

* * *

 

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Senate Confirms Steve Linick; State Dept Finally Gets an Inspector General After 2,066 Days

— By Domani Spero

President Obama nominated Steve A. Linick as State Department Inspector General back in June filling a 1,989-day vacancy. (After 1,989 Day-Vacancy — President Obama Nominates Steve Linick as State Dept Inspector General). He will succeed Howard J. Krongard who announced his resignation on December 7, 2007.   Mr. Linick went before the Senate Foreign Relations Committee on July 30, 2013 (see video here).  During his confirmation hearing, he made the following pledges:

From a strategic and leadership perspective, I understand that the responsibilities of the position to which I have been nominated are great. Based on the significant issues facing the Department of State, it is clear to me that assuming the leadership role of Inspector General will be challenging and rewarding. I look forward to this task, if confirmed.

If confirmed, I pledge to: 

  • Ensure that the Department of State Office of Inspector General (OIG) is an independent and objective organization that provides timely, robust, fact-based oversight, transparency, and accountability to the programs and operations of the Department of State; 
  • Consult stakeholders regularly (including the Government Accountability Office and affected communities)
  • Efficiently and effectively deploy OIG resources to those areas that present the highest risk to the Department of State; 
  • Collaborate with other inspectors general who have potentially overlapping interests, jurisdiction, and programs; 
  • Ensure whistleblowers have a safe forum to voice grievances and are protected from retaliation; and
  • Aggressively protect taxpayer funds against fraud, waste, and abuse.

 

On September 17, after a wait of almost three months, the Senate finally confirmed Mr. Linick. So for the first time in 2,066 days, the State Department has a Senate-confirmed watchdog.

Today, September 30, will reportedly be Mr. Linick’s first day at work as Inspector General of the oldest executive department in the union.

While we have not been following his work as IG for the Federal Housing Finance Agency (FHFA), we understand that he was not shy in questioning publicly the large compensation packages for executives of Fannie Mae and Freddie Mac. He also told them off the bat that he would be no ordinary Washington regulator.  We are pleased with this appointment as State/OIG primarily because of that and because he is from outside The Building with limited Foreign Service connections.  With him as new watchdog in Foggy Bottom, we hope to see some changes in the way the OIG conducts its business.  We think our wishlist below is pretty reasonable.

1.  Redactions

One of our pet peeves, especially in the last several years is the redaction of OIG inspectors names from publicly available reports posted online.  The controversial OIG report on the IIP Bureau (Inspection of the Bureau of International Information Programs (ISP-I-13-28), similarly was stripped of names on who conducted the inspection.  The copy we were furnished did include the names of the team leader and deputy team leader but the rest of the names of the inspection team members were redacted.

When we inquired from State/OIG about this, we were told:

“It is marked as FOIA Exemption (b)(6) – “exempts from disclosure records or information which if disclosed would constitute a clearly unwarranted invasion of personal privacy.”

Now, that there alone gave us a terrible headache. The OIG inspectors are conducting official business in the name of the American public. Why would it be an invasion of privacy if their names are revealed?

So we asked “Why”? And this is what we were told by State/OIG:

“There is recent case law that specifically protects inspectors and investigators from having their information disseminated. However, there is concomitant protection for auditors – so, we continue to release their names.”

Protects them from having their “information disseminated” — as if we were asking for their home address.  We just want the names public. So we tried again asking State/OIG for the case law and date that their official FOIA lawyer is citing.

State/OIG who is actually quite good with response time sent us a disappointing reply:

“I’m afraid I don’t have it – and today was her last day.”

Look, there is a a reason why the inspectors’ names should not/not be redacted.  Retired and active FS officers are part of the OIG staff.  Active FS officers who become IG staff eventually has to bid for other rotational Foreign Service jobs.  Since 1978, the Government Accountability has questioned the use of FSOs detailed to the OIG  office since they bid and return to regular FS assignments.

  • In 1978, GAO reviewed the IG’s inspection reports and questioned the independence of Foreign Service officers who were temporarily detailed to the IG’s office and recommended the elimination of this requirement.
  • In 1979, the GAO noted that Foreign Service officers detailed as inspectors for temporary tours of two years and then reassigned to activities which they may recently have evaluated has negative as well as positive aspects.
  • In 1982  GAO continued to question the use of Foreign Service officers and other persons from operational units within the department to staff the IG office. It told Congress that it believes the IG’s extensive use of temporary or rotational staff affects the IG office’s independence because (1) these staff members routinely rotate between the IG office and management positions within the organizations they review, and (2) major decisions affecting their careers are determined by the State Department rather than by the IG office.
  • In 1991, GAO examined whether the Department of State’s Office of Inspector General (OIG): (1) omitted references to itself in an annual oversight report to Congress in a deliberate attempt to conceal internal problems; and (2) inappropriately hired and paid experts and consultants.
  • In 2007 GAO reported to Congress that it continue to identify concerns regarding the independence of the State IG that are similar to concerns they reported almost three decades ago. GAO concerns include (1) the appointment of line management officials to head the State IG in an acting capacity for extended periods, and (2) the use of ambassador-level Foreign Service staff to lead inspections of the department’s bureaus and posts even though they may have conflicts of interest resulting from their roles in the Foreign Service.
  • In 2011, the GAO noted some improvements, specifically noting that while State/OIG continues to assign Foreign Service officers at the ambassador level as team leaders for inspections, four of the six officers are rehired annuitants unlikely to rotate to State Department Foreign Service positions. GAO remains concerned, however, about the OIG’s use of Foreign Service officers and the State Department’s need to rely on acting IGs for extended periods of time.

In 1986, Congress made the State IG a presidentially appointed inspector general subject to the Inspector General Act and prohibited a career member of the Foreign Service from being appointed as the State IG. That change did not prohibit the appointment of a career member of the FS as acting IG or deputy IG.  According to the GAO in 2011, State/OIG implemented a change to the succession planning for acting IG positions to exclude Foreign Service officers.

We have yet to see that in action.

While we have not been able to confirm the relevant case law that State/OIG cited in withholding the identities of inspectors, we were told that this “doesn’t sound implausible.”  Steven Aftergood (@saftergood on Twitter) who runs Secrecy News for the Federation of American Scientists posits that even if such an exemption from disclosure exists (which it probably does), then it would be discretionary, not mandatory.  It means that State/OIG would be “at liberty to disclose it even if there was no compelling legal obligation to do so.”

Given the nature of the assignments/rotations in the Foreign Service, and the persistent questions of potential impairments to independence, we look on Mr. Linick to lean on the side of disclosure. Mr. Aftergood suggests that “such disclosure would be a good practice to adopt, particularly in light of the variability of State OIG career tracks and the potential for subsequent conflicts of interest.” 

2.  Recusals

The GAO report dated April 2011 indicates that to address independence impairments the State/OIG relies on “a recusal policy where Foreign Service officers must self-report whether they have worked in a post or embassy that is subject to an inspection and therefore presents a possible impairment.”  The GAO insist that they “continue to believe that the State OIG’s use of management staff who have the possibility of returning to management positions, even if they are rehired annuitants or currently report to civil service employees in the OIG, presents at least an appearance of impaired independence.”

We have never seen any of the published OIG reports indicate whether any recusal was filed related to an inspection or audit.  We would like to see that information included in State/OIG reports and audits.

3.  A Note on Black Sharpies 

Remember the hard-hitting OIG reports on Luxembourg, Kenya, Malta? All made the news. All also have one other thing in common — the chiefs of mission at these three posts were all political appointees.  Then there were two other OIG reports on Pakistan and Lebanon that caught our attention, both under career diplomats, and both severely redacted, including one that talks about the leadership shortcomings in the front office. (State Dept OIG Reports: Oh, Redactions, Is Double Standard Thy True Name?).  We were told that the redactions in one case had to do with the “geopolitical situation” at one post.  Our main concern about this as we have said here in the past is two-fold: 1) the appearance of a double standard and 2) recycling FSOs with problematic leadership and management skills is not going to make another embassy greener or healthier nor make for better FSOs.  Without effective intervention, they’re just going to make another post as miserable as the last one and impairs the embassy mission and operation. We would like to see State/OIG apply one standard on its reviews of chiefs of mission performance. Not whether they are effective political appointees or effective career appointees but whether they are effective representatives of the President regardless of their appointment authorities.

4. Cobwebs Over Troubled OIG Memo

Finally – remember this past summer when there was a big kaboom in Foggy Bottom ? (See CBS News: Possible State Dept Cover-Ups on Sex, Drugs, Hookers — Why the “Missing Firewall” Was a Big Deal.  The Cable’s John Hudson had an exclusive with Aurelia Fedenisn, a former State Department inspector general investigator Exclusive: Whistleblower Says State Department Trying to Bully Her Into Silence.  Some real serious allegations were made about cases that were reportedly “influenced, manipulated, or simply called off” in the State Department.  State/OIG released a statement to CBS News here.

On June 10, 2013, the State Department spokesperson Jen Psaki was on the podium answering questions about the CBS report:

QUESTION: First, what – I guess we can begin most broadly simply by asking what comments you have about the report that aired on CBS News this morning concerning State Department OIG Office.

MS. PSAKI: Mm-hmm. Well, the Department of State employs more than 70,000 dedicated men and women serving in some of the most challenging environments working on behalf of the American people at 275 posts around the world. We hold all employees to the highest standards. We take allegations of misconduct seriously and we investigate thoroughly. All cases mentioned in the CBS report were thoroughly investigated or under investigation, and the Department continues to take action.

[…]

QUESTION: — to borrow a phrase. You stated at one point early in your answer just now that all cases mentioned in the CBS News report were thoroughly investigated but that the State Department continues to take action on them. Did I understand you correctly?

MS. PSAKI: Yes. I did not mean to imply they were – the investigations were completed. Some are in process.

QUESTION: And when you talk about those cases being in process or in progress and action continuing to be taken on them, is that separate from the hiring of outside personnel that you also just referenced?

MS. PSAKI: Well, it’s not a hiring. It’s – it would be an investigation being done by the Inspector General’s Office working with outside law enforcement officers. So I would refer you them for any more specifics on that or how that would work. That’s a decision, of course, they make.

The back and forth went on and on to a point of total uselessness.  But the official spokesperson of the State Department did confirm that all the cases mentioned in the CBS report were “thoroughly investigated or under investigation.”

So imagine our confusion when the State/OIG submitted its Semiannual Report to the Congress October 1, 2012, to March 31, 2013 which was posted online on June 19, 2013?   We could not find any of the eight cases alleged in the CBS news report. None are listed as either an ongoing or a completed investigation in this semi-annual report; they’re not in the report submitted six months earlier either. What happened to them?

The report to Congress ending on March 31, 2013 lists investigations on bribery, theft and embezzlement, false claims, and grant fraud. It includes four investigations under employee misconduct: 1) a DCM repeatedly used his government resources for non-official purposes; 2)  a passport specialist used her official position to access personal information of personal acquaintances from official passport databases; 3) a Foreign Service officer responsible for award and oversight of the grants failed to follow grant policy; and 4) a Department employee who was overpaid for workers’ compensation leave (WCL) after a work-related injury.

Any of that remotely resembles the cases described in the October 2012 memo reported on the news?

The report did include under Congressional Mandates and Requests the following item which also made the news at around the same time as the CBS news:

“On November 2, 2012, OIG received a request from Senator Rand Paul to investigate allegations of staff misconduct at the U.S. Consulate General in Naples, Italy. In its response, OIG noted that the complaints were referred to the appropriate offices in the Department and that the complainants were provided contact information for the offices to which the complaints were referred.”

So —

We would like to suggest that among Mr. Linick’s first order of business, and we expect that he will have a full plate, is to personally look into what happened to these eight cases alleged to have been deep-sixed.  If these cases had been “thoroughly” investigated as claimed, then there should be records.   If the individuals were cleared, there should also be records.  If these allegations were never investigated, or there are no records, then one needs to ask why. Of course, there is another “why” that we are interested in. Why would a retired investigator of the Service turn against her old office in the most public way?

How aggressively Mr. Linick tackle these cobwebs and get some answers would help tell us what kind of junkyard dog he is going to be.

Whew! That’s sorta long. We’ll stop here and get some sleep and see what happens, okay?

(o_o)

Related reports:

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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