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OLSEN v. CHRISTOPHER

April 23, 1997

ROBERT E. OLSEN, Plaintiff,
v.
WARREN M. CHRISTOPHER, et al., Defendants.



The opinion of the court was delivered by: SPORKIN

 The Plaintiff in this suit, Robert E. Olsen, brings this action against former Secretary of State Warren Christopher, in his official capacity, and certain other employees of the United States Department of State ("State Department"), alleging that he was separated from the Foreign Service in retaliation for opposing a visa adjudication system employed by the United State's Consulate General in Sao Paulo, Brazil that was "arbitrary, irrational and discriminatory."

 Before the Court are the Defendants' Motion to Dismiss, Motion for Summary Affirmance of the Decision of the Foreign Service Grievance Board and oppositions and replies thereto. Also before the Court is the Plaintiff's "Motion for Judicial Abstention," Motion for De Novo Review and the Defendants' oppositions thereto. Upon careful consideration of the parties' pleadings, the entire record herein, and the law applicable thereto, and for the reasons set forth below, the Court shall direct the Secretary of State to investigate the use of codes to classify applicants for nonimmigrant visas based on certain aspects of their physical appearance. The Secretary of State shall submit to the Court a pleading setting forth its findings on or before May 30, 1997. The case shall be held in abeyance until the Secretary of State submits the requested information.

 BACKGROUND

 I. Statement of Facts.

 The Plaintiff is an attorney who entered the Foreign Service after a nearly twenty-year career in business and law. After graduating from Harvard University in 1966, the Plaintiff received an M.A. in American civilization from the University of Pennsylvania, and completed all but the dissertation for a doctorate in that field. He later graduated from the University of Denver College of Law, served as the chief operating officer of an equipment leasing company and industrial bank, and practiced law for fifteen years in Denver, Colorado, specializing in securities law and litigation. Adm. R. 574.

 In September 1990, the Plaintiff took and passed the written Foreign Service Officer examination. During 1991, he took and passed the oral Foreign Service Officer examination, and received medical and top secret security clearances. On January 6, 1992, the Plaintiff was appointed a Foreign Service Officer. New Foreign Service Officers receive a five-year limited appointment, during which they are to serve two or more tours of duty, at different posts and under different supervisors, before being reviewed by the Department for tenure and assignment to a functional career specialization. In this case, however, the State Department discharged the Plaintiff from employment for "unsatisfactory performance," on September 21, 1994, following his single abbreviated tour of duty as a consular officer at the U.S. Consulate General in Sao Paulo, Brazil. The Plaintiff's principal responsibility in that position was to adjudicate nonimmigrant visa applications.

 The Plaintiff alleges that Defendant Thomas Lloyd, the head of the Sao Paulo visa unit and the Plaintiff's immediate supervisor, directed the Plaintiff and the three other consular officers under his supervision to note on nonimmigrant visa applications certain aspects of the applicant's physical appearance through a system of codes, and to base decisions to issue or deny nonimmigrant visas, in part or in whole, on those visual cues. First Amended Cmplt. P 11, 20-25. For example, the visa officers were to place an "LP" on the application of an individual who "looks poor." An "LR" would be placed on the application of an individual who "looks rough." An "RK" would be placed on an application of a person who looks like a "rich kid." The post-specific profiling codes were incorporated into the Visa Officer's Manual. *fn1" Adm. R. 42.

 The Plaintiff alleges that the codes and other written and unwritten criteria adopted by the Consulate's visa unit involved the consideration of an applicant's skin color, race or national origin in evaluating his or her visa application. *fn2" First Amended Cmplt. P21-22. The Plaintiff claims that the use of the codes to adjudicate nonimmigrant visa applications reflected notions held by Mr. Lloyd that: (1) dark-skinned Brazilians were "poorer" than light-skinned Brazilians, and, therefore, less likely to return to Brazil if allowed to enter the United States; and (2) members of certain ethnic groups, such as Chinese and Koreans, were more likely to engage in fraud. *fn3" Id. ; Adm. R. 741.

 Mr. Lloyd allegedly emphasized the use of profiles because it quickened the visa adjudication process. Mr. Lloyd and Ms. Lochman allegedly told the Plaintiff that he should spend a maximum of three minutes per interview with the large majority of cases. First Amended Cmplt. P45. Consul General Taylor, however, purportedly directed Mr. Lloyd and Ms. Lochman to change this standard out of a concern that profiles may be used as the sole basis of adjudication. Id.

 The Plaintiff claims that he objected to using the codes, and in November 1992, began expressing his concerns about the policies in private meetings with, and communications to, his direct supervisor, Mr. Lloyd, Defendant Philip Taylor, serving then as the Sao Paulo Consul General, acting visa unit chief Laura Lochman, and consular section head Patricia Murphy. Adm. R. 47, 66, 449, 454, 505-25, 569, 578, and 853-54. After numerous discussions between the Plaintiff and his supervisors about the Plaintiff's objections to the visa adjudication system as well as his overall performance, Mr. Lloyd rated the Plaintiff's performance as unsatisfactory in a June 23, 1993 draft performance evaluation, stating that the Plaintiff "disagreed with our policy and has decided to do things 'his way', while paying lip service to authority." Adm. R. 78, 85-86, 120, 463-64. The narrative portion of the evaluation stated that the Plaintiff's visa decisions were "routinely questionable," and that he "has a problem accepting authority." Adm. R. 83, 85. Mr. Lloyd further stated that he believed that the Plaintiff "well understood what is appropriate but refuses to do what everyone else in the section does because he simply does not agree." Adm. R. 86. That same day, Mr. Lloyd instructed the three other visa officers and a Brazilian employee of the visa unit to begin reviewing all of the Plaintiff's visa issuances and to report any departures from the post's "local policies." Adm. R. 464, 562.

 Consul General Philip Taylor also allegedly criticized the Plaintiff for failing to adjudicate visa applications in the same manner as the other visa officers. Adm. R. 92. On June 30, 1993, Mr. Taylor gave the Plaintiff the draft employee evaluation prepared by Mr. Lloyd on June 23, 1993, and explained to the Plaintiff that he was given the interim report as an indication of where he needs to improve to be successful in his first assignment. Adm. R. 89.

 On July 6, 1993, the consulate received a cable from Washington asking whether the Plaintiff should be administratively promoted to FP-4, effective August 11, 1993. The consulate replied by telegram dated July 7, 1993 that administrative promotion was not warranted because of the Plaintiff's poor performance, and that the post had prepared a draft evaluation of the Plaintiff, and had given the Plaintiff sixty days to raise his performance to the satisfactory level. Adm. R. 88.

 Just thirteen days after the start of the "trial period," Mr. Taylor allegedly told the Plaintiff that it was "a virtual certainty" that he would be rated unsatisfactory at the end of it. Adm. R. 95, 112. In a July 19, 1993 Memorandum to Consul General Taylor, Ms. Murphy concluded "that Mr. Olsen's performance falls far short of that which I would expect from an officer who has been on the job for over eight months. His deficiencies lie in the two core skills required to perform visa work -- speed and judgment." Adm. R. 294. The sixty-day trial period was ended ...


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