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December 19, 1997

ROBERT E. OLSEN, Plaintiff,
MADELINE ALBRIGHT, et al., Defendants.

The opinion of the court was delivered by: SPORKIN

 This matter is before the Court on Plaintiff's motion for summary judgment on Count I of his First Amended Complaint. In that Count, Plaintiff, a former member of the United States Foreign Service, seeks a determination that Plaintiff's termination by the United States Department of State ("State Department") was unlawful. Plaintiff further attacks the decision of the Foreign Service Grievance Board ("Board" or "Grievance Board") upholding that termination as unlawful. Plaintiff joined the Foreign Service on January 6, 1992. He served his first tour of duty in the Foreign Service at the United States Consulate General in Sao Paulo, Brazil ("Consulate") as an adjudicator of visas. Plaintiff claims that he was terminated because he objected to and refused to follow "profiles" that required him to adjudicate visas on the basis of the applicant's race, ethnicity, national origin, economic class, and physical appearance. Plaintiff seeks reinstatement in the Foreign Service with back pay, benefits, and scheduled administrative promotions.

 This Court grants Plaintiff's motion in part. The administrative record indicates that the Grievance Board did not properly address the question of the legality of the Consulate's visa policies when it reviewed Plaintiff's termination. On their face, these profiles are contrary to law because they make generalizations based principally on the basis of race, ethnicity, and national origin. The Plaintiff had the right to voice his objections to these policies and not be discharged for refusing to apply them. The Board failed to address this issue in its decision. As a result, the Court finds that the Board's decision was "arbitrary," "capricious," and contrary to law within the meaning of the Administrative Procedure Act ("APA"), § 706(2)(A). Accordingly, the Court will remand the matter to the Grievance Board for a reconsideration of its decision of Plaintiff's termination in light of this Court's decision.


 Plaintiff graduated from Harvard University. Afterwards, he completed all but the dissertation requirement for a doctorate in American civilization at the University of Pennsylvania. Plaintiff then went to law school at the University of Denver College of Law. After receiving his law degree, he practiced law for fourteen years before joining the Foreign Service on January 6, 1992, at age forty-seven. Plaintiff was appointed to serve an initial five-year term, at the end of which he would become eligible for tenure and a career appointment. On October 29, 1992, following the completion of his training, Plaintiff began a tour of duty at the Sao Paulo Consulate. He was assigned to serve as one of four consular officers primarily responsible for adjudicating applications for nonimmigrant visas. Plaintiff's direct supervisor at the Consulate was Thomas Lloyd, chief of the Consulate's visa unit.

 The Consulate had established various policies which all officers were required to follow in adjudicating eligibility for nonimmigrant visas. Some of the policies focused on the applicant's physical appearance and economic status. According to the Consulate's manual:

It is helpful to circle doubtful items on the [visa application form] so that other officers have an idea of why the applicant was g-ed. Officers sometimes use abbreviations on the forms:
RK = Rich kid
LP = Looks poor
TP = Talks poor
LR = Looks rough
TC = Take care

 A.R. 740. Some of the stated reasons for the denial of visas included: "Slimy looking[;] wears jacket on shoulders w/ earring," A.R. 527; "LP", A.R. 531, 538; "LP!!!!!," A.R. 534 (emphasis in original); "LR " A.R. 536 (emphasis in original); "Look Really Poor," A.R. 544; "Looks Scary," A.R. 556; "Bad Appearance. Talks POOR," A.R. 854 (emphasis in original); and "Looks talks poor." Id.

 In addition to the codes based on physical appearance and economic status, the Consulate's policies focused on the race, ethnicity, place of birth, and national origin of applicants. For example, the Consulate's manual provided:

Major fraud; hard to check. In general, they are almost always called for an interview. Visas are rarely issued to these groups unless they have had previous visas and are older. A.R. 741.

 The manual also distinguished among applicants based on place of birth within Brazil. After identifying various cities "known for fraud"--most of them with predominantly black populations--the manual states: "anyone born in these locations is suspect unless older, well-traveled, etc." A.R. 741.

 Plaintiff believed that the policies were not only improper, but also illegal. Disturbed by the policies, he began to document some of the particular cases which he found troubling. Plaintiff brought his complaints to Lloyd and Murphy. Plaintiff considered the Consulate's visa adjudication guidelines to be legally questionable and objected to basing his decisions on these policies. According to a March 10, 1993 memorandum by Laura Lockman, an officer at the Consulate, the Plaintiff was quoted as saying "that decisions should be made on facts going deeper than the profile information." A.R. 668. After a temporary assignment in April 1993 to the visa unit at the Consulate in Porto Alegre, Brazil, Plaintiff wrote an April 27, 1993 memorandum to Murphy. It stated that "Porto Allegre uses the personal appearance of applicants simply as a rough check of their documentary evidence. Sao Paulo, on the other hand, . . . relies heavily on the appearance of applicants." A.R. 508. On his copy of the memorandum, Lloyd added the following handwritten comment: "His criticisms of most everything we do in the visa section in Sao Paulo are implicitly apparent." A.R. 505.

 Lloyd and Lochman informed Plaintiff that they disapproved of his judgment in particular cases because he had issued visas "to typical post fraud profiles." A.R. 654. Plaintiff had a lower refusal rate and interview speed than other officers. A.R. 653-56. Lloyd and Lochman told Plaintiff that he should spend approximately three minutes per interview and that he should attempt to achieve a thirty percent refusal rate. To achieve these goals, they said; Plaintiff should base his judgment on the profiles. A.R. 45, 653.

 Plaintiff's supervisors and fellow officers grew increasingly resentful of his disagreement with their adjudication policies. According to Murphy's later description of her and the others' reactions to the Plaintiff, the Plaintiff was refusing to be "a part of the system" and was contesting the decisions of other officers on visa denials. "In some ways, Bob's problems here have been because he refuses to compromise with his own convictions." A.R. 292.

 In June 1993, Lloyd discussed the situation with Consul General Philip Taylor, who instructed Lloyd to prepare a draft Candidate Evaluation Report ("CER") on the Plaintiff. A.R. 645. On the CER form, Lloyd checked boxes stating that Plaintiff's performance failed to meet most requirements of the job and that Plaintiff was unlikely to serve effectively even with additional experience. A.R. 78-79. Lloyd stated that Plaintiff "disagrees with our policy and has decided to do things 'his way.'" A.R. 85. On July 7, 1993, in response to an inquiry from the State Department concerning Plaintiff's scheduled administrative promotion, Taylor advised the State Department by cable that a promotion was not warranted at that time because Plaintiff's performance had been unsatisfactory. A.R. 88. Plaintiff was given "an additional period of 60 days to raise his performance to a satisfactory level." A.R. 88.

 Thirteen days after the start of Plaintiff's 60-day trial period, Murphy issued a memorandum of July 19, 1993, which stated: "Based on his performance to date and on my close personal observation during the thirteen-day period, I do not believe that Olsen can effectively meet the requirements of his position." A.R. 288. On August 16, 1993, Lloyd submitted a final CER to Taylor, A.R. 59, which rated Plaintiff's performance as unsatisfactory. Murphy informed the Plaintiff that effective immediately, he should stop working in the visa unit and begin working in the American Citizen Services section. A.R. 102. On October 9, 1993, the Director General formally notified Plaintiff that she had received the final CER and invited Plaintiff to submit comments in response. Plaintiff stated that he believed the Consulate's policies were "inconsistent with the law" and were "based on sterotyped notions of appearance" and "ethnic, gender, class or age stereotypes." A.R. 126. On December 6, 1993, the Director General informed Plaintiff that he was to be terminated from the Foreign Service effective on January 30, 1994.

 On January 19, 1994, Plaintiff submitted a grievance contesting his impending termination from the Foreign Service. The filing of the grievance suspended his pending termination. On July 8, 1994, the State Department denied Plaintiff's grievance. On April 30, 1994, Plaintiff left the Sao Paulo tour and was assigned to the State Department's Internal Organization Affairs Bureau ("IO") in Washington, D.C.

 While at the IO, Plaintiff continued to contest his pending separation from the Foreign Service. Plaintiff submitted his grievance to the Grievance Board on July 26, 1994 and on July 27, 1994, he requested a hearing in the matter. On August 12, 1994, a Board staff member issued an interim decision denying Plaintiff further prescriptive relief. Plaintiff was separated from the Foreign Service on September 21, 1994. On September 25, 1995, the Board denied Plaintiff's request for a hearing and Plaintiff's grievance. The Board concluded that "the practice of establishing local post-specific guidelines is not a violation of law" and that ...

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