Olson v. Clinton: Court Grants Summary Judgment for State in a Discrimination Suit

Leonard Link recently wrote State Department Wins Round Against Gay Foreign Service Officer (h/t to Digger of Life After Jerusalem).

“U.S. District Judge Gladys Kessler ruled on March 12 that the U.S. State Department was entitled to summary judgment in a sexual orientation discrimination case brought by Karl Olson, a gay Foreign Service Officer (FSO) who claimed that adverse Employee Evaluation Reports concerning his service in Brazil were impermissibly tainted due to the homophobia of the Consul General in Rio de Janeiro. Olson v. Clinton, 2009 WL 635977 (D.D.C.).”

I had time to spare so I thought I would dig up more about this story.

FSO Karl Olson has been an FSO since 1985, tenured in 1988, and was NIV chief at ConGen Rio de Janeiro from 1993-1996. The case was originally brought against Secretary Rice but was substituted with Secretary Clinton as lead respondent when she became SoS. In his lawsuit, Olson seeks “judicial review of a Foreign Service Grievance Board (“FSGB” or “Board”) decision, alleging that it was arbitrary and capricious and tainted by prejudicial procedural errors.”

He received two Employee Evaluation Reports (EER) during his Rio de Janiero tour -- looks like both reports were from one rating officer but reviewed by two different officers. EERs are use by the Foreign Service Selection Boards to evaluate FSOs for promotion or selection out of the Service.

On May 22, 1998, Olson filed a grievance with State “alleging that the EERs covering his time in Rio were inaccurate and falsely prejudicial, omitted favorable information, contained inadmissible comments, and were based on the anti-homosexual bias of Beffel and Zweifel” (his rating and reviewing officer). The case went to the FS Grievance Board (FSGB), was appealed, decided upon, went to the US District Court (D.C.), got remanded back to FSGB, decided upon, then finally went back to the US District Court (D.C.) where it landed on District Judge Gladys Kessler’s court.

You can read Judge Kessler’s March 12 Memorandum Opinion for Olson v. Clinton, 2009 WL 635977 (D.D.C.) here. Mr. Olson apparently filed all his pleadings under seal, so the Opinion is redacted/blacked out in various sections.

There are four things that strike me most about this case.

#1. Getting entangled with the FSGB and the Court looks like a real hard slog; Gosh, golly – this one took over 10 years! The website for the FSGB is here; everything there seems to be in Word document right now with ongoing work Notice says they are trying to “to make it more user friendly,” but website is bare, except for four annual reports in PDF files. Oh yeah, the search function makes me feel really dumb.

#2. Just see how many characters populated this case besides the FSO and his rating and reviewing officers. There was a third Consul General with his say, an Economic Officer who overheard criticisms about plaintiff, a Deputy Principal Officer with his say, an Administrative Officer, and an Ambassador who stated that he “received so many complaints about Mr. Olson” that he initiated a “campaign to emphasize ‘courtesy and respect’ to our visa officers.” Then there were those colleagues of Mr. Olson who felt that there were "homophobic attitudes" or an "atmosphere of homophobia," including a DAS, a CA management analyst, and three Consular Officers.

Mr. Olson was the NIV chief at a constituent post, which means, there were a few folks between him and the chief of mission. The hierarchy would have been the Consular Section Chief and Consul General at ConGen Rio and then the Deputy Chief of Mission and the Ambassador at Embassy Brasilia. But who’s missing in the line-up of quotes? I have not seen any FSGB documents but no HRO, Consular FSNs, or DCM appeared to be quoted here. In a case like this, I wonder if the co-workers are naturally divided between the litigants? Who decides who speaks out for the record?

#3. There was that 1994 cable to Diplomatic Security from Rio, which the Court find most disturbing. “The cable targeted Plaintiff for no reason other than his sexual orientation and cited his homosexuality as its basis for initiating a defensive briefing (see page 8 for excerpt of cable).”

I guess we need some historical context here. In 1971 there was Gayer v. Laird, a challenge to anti-gay security clearance rules. In 1975, in Singer v. U.S Civil Service Commission, a gay federal employee was fired for being “flamboyant.”

As background, federal agencies used the sexual perversion criteria in the early 1950s to categorize homosexuals as security risks and separate them from government service. Agencies could deny homosexual men and women employment because of their sexual orientation until 1975, when the Civil Service Commission (now OPM) issued guidelines prohibiting the government from denying employment on the basis of sexual orientation. The guidelines, which further define the provisions of Executive Order 10450, resulted from court decisions requiring that persons not be disqualified from federal employment solely on the basis of homosexual conduct. Although the public policy change resulted in the restrictions against employment of homosexuals being lifted, the guidance for granting security clearances to homosexuals remained generally vague or restrictive until the early 1990s.

In 1995, President Clinton signed Executive Order #12968 on Access to Classified Information stating clearly that:

(c) The United States Government does not discriminate on the basis of race, color, religion, sex, national origin, disability, or sexual orientation in granting access to classified information.

(d) In determining eligibility for access under this order, agencies may investigate and consider any matter that relates to the determination of whether access is clearly consistent with the interests of national security. No inference concerning the standards in this section may be raised solely on the basis of the sexual orientation of the employee.

#4. Finally, although the Court pointed out some shortcomings in the FSGB’s decision, it says, “the Court must determine not whether the Board’s decision was perfectly correct, but whether it was arbitrary.” It also states that “it is not this Court’s role to determine the facts anew or to reach its own conclusions whether Plaintiff’s EERs were accurate.” The critical question according to the Court “is not whether bias existed – it did – but whether the FSGB’s decision was arbitrary and capricious when it determined that the EERs were not falsely prejudicial.”

The Court citing Ackerman v. United States [324 F.Supp. 2d 1, 7 (D.D.C. 2004)] also states that “Under the highly deferential administrative review standard, the decision to weight different events in a foreign service officer’s employment history is within the expertise of the FSGB and must receive deference.” (See FSGB report on this, p.11)

Now, that brings some rather sobering thoughts, doesn’t it?

Kessler’s Memorandum Opinion on Olson v. Clinton is supposed to be accompanied by an Order, but I can’t locate that right now. I’ll add it here if/when I find it. If you have the link, do please give me a holler.