In Other Media-eg New Statesman, AJE, FP, Georgia, NYT,  Azerbaijan, CSM Click here to contact us     .

By Matthew Russell Lee, Patreon
BBC - Guardian UK - Honduras - ESPN

SDNY COURTHOUSE, Oct 21 – Jane C. Malloy, an African-American woman, has filed a racial discrimination lawsuit against the U.S. State Department, specifically against its U.S. Mission to the United Nations. 

 U.S. District Court for the Southern District of New York Magistrate Judge Kevin N. Fox held a proceeding. Inner City Press, in-house press at the SDNY, covered it.

In October 2022, the US State Department filed a proposed settlement of the case, to pay the plaintiff $900,000, with redactions despite the use of public funds - and then filed for further sealing. Inner City Press put the redacted settlement agreement here.

On October 21 Inner City Press filed, and Judge Gardephe's chambers to their credit docketed, a request to unseal, here: " Inner City Press is covering the above captioned cases against the U.S. State Department and the then-acting Secretary of State, and the use of public funds to settle it while redacting at least two paragraphs of the settlement agreement. As part of its reporting it sought to access the most recent filings in the case, but found significant redactions from Docket No. 106 (Settlement Agreement), while for Docket No. 107 the response in PACER was and is, "You do not have permission to view this document." This is a public / Press challenge to this withholding from the public. While not seeking any truly private information regarding the plaintiff, the public has a right to know as much as possible about this case, particularly given the actions of and now use of public funds by the US State Department. The right of access is not limited to criminal matters. See, e.g., Lugosch v. Pyramid Co. of Onondaga, 435 F.3d 110, 124 (2d Cir. 2006) (right of access applied to summary judgment motions in civil matter); and In re Pineapple Antitrust Litig., No. 04 MD. 1628, 2015 WL 5439090, at *2 (SDNY 2015) ("There is... no requirement that the application be made before the lawsuit is closed.")."

There was a telephone conference: "Minute Entry for proceedings held before Judge Paul G. Gardephe: Telephone Conference held on 10/21/2022. (Court Reporter Raquel Robles)."

After the telephone conference, the request to seal and redacted was apparently pared back to only Exhibit A: "LETTER MOTION to Seal Exhibit A to Settlement Agreement addressed to Judge Paul G. Gardephe from David Coon dated October 21, 2022."

Later, the settlement was refiled with paragraphs 6 and 7, which there was no basis to seal, unredacted, here: "the Parties agree that Plaintiff will direct any written or oral inquiry regarding her employment at the State Department from any prospective employer (including government employers) exclusively to the G1M Records and Information Management Division, Department of State (the "Division"). The Government agrees to instruct the following State Department employees and/or contractors to direct any written or oral inquiry regarding Plaintiffs employment at the State Department exclusively to the Division: Elisa Yoshioka, Harry Ting, Mary Alderete, Christopher Pinzino, Brian Heath, Frederick Murriel, Clouise Jackson, LaShon Solomon, Suzanne Lawrence, Eric Larrondo, Bruce Williamson, Marcia Bernicat, Philippe Lussier, Jeanne Juliao, Gary Heinrich, Margaret Uyehara, Carolyn Creevy, and Maria Brucklacher. In response to any such inquiry regarding Plaintiffs employment at the Department of State, the Division will not provide any information beyond: (i) the length of Plaintiffs service to the Mission and Plaintiffs most recent title; (ii) that Plaintiff resigned from the State Department; and/or (iii) that Plaintiffs most recent performance review at the time of resignation was "fully successful."

This paragraph shall not apply to inquiries in response to which the State Department is required by policy, law, or regulation to provide information, such as law enforcement or background investigations, suitability determinations, security clearances, Office of Workers' Compensation claims, unemployment compensation claims, or defending actions against the Department of State (the "Excluded Inquiries"). In response to any Excluded Inquiries, the Government shall provide, in addition to any other information concerning Plaintiff, a copy of this executed Stipulation. The Division's contact information is: H804, SA-1, 2401 E St. NW, Washington, D.C. 20522 (for written inquiries); 202-663-1880 (for telephone inquiries); GTMVerificationEmpl@state.gov (for email inquiries).

7. Plaintiff agrees to accept the benefits being provided to her under the Stipulation in full and complete settlement and satisfaction of any and all of her claims and demands, and hereby irrevocably and unconditionally releases and discharges the Government, any of its sub-agencies, departments, or components, and any of their current or former officers, employees, representatives, agents, attorneys, and persons acting by, through or under any of them, including but not limited to individual federal employees and former employees identified or named in the 2018 Action and/or the 2019 Action (collectively, the "Released Parties") from any and all charges, complaints, claims, actions, causes of action, liabilities, obligations, damages, losses, debts and expenses (including attorney's fees and costs incurred), of any nature whatsoever, known or unknown, that Plaintiff now has, owns, or holds, or claims to have, own, or hold, or at any time heretofore had, owned, or held, or claimed to have, own, or hold regarding matters that have arisen out of or in connection with her employment at and/or termination from the State Department or which occurred prior to the date on which the Court enters the Stipulation (the "Effective Date") unless otherwise specified in this Stipulation." We'll have more on this.

   Malloy's complaint recounts how her nomination for the Innovation in the Use of Technology Award was wrongfully not passed along to the Chief of Mission, and how they failed to promote her from the GG-12 to the GG-13 despite her solid performance reviews.  

Now the State Department's concern is a protective order so that information they produce under discovery is not available to the public.

  And on April 19, stating that US Mission to the UN staffer Harry Ting cannot be deposed - possibly justified - the request was made to file records under seal, ex parte, Attorney's Eyes Only.

On April 29, Magistrate Judge Kevin N. Fox  denied the request, at least for now: "ORDER denying without prejudice [55] Letter Motion to seal and for a conference. The instant application is not in consonance with 2A of the Court's Individual Rules of Practice, which requires a joint writing from the parties. (HEREBY ORDERED by Magistrate Judge Kevin Nathaniel Fox)."

Even if that's belatedly complied with, might it not be available under the Freedom of Information Act - something that, like First Amendment protections, the UN doesn't have and the US Mission is doing nothing about?

On June 24, Judge Fox held another proceeding, and Inner City Press still banned from the UN covered it. Now Mr. Ting of the US Mission is being described as, when he heard the plaintiff's name, saying he wanted to vomit and cry. What really went on?

  The discovery plan lists depositions with Andrea Donohue, Natoschia Scruggs, Mary Alderete, who pointed to Eric Larrondo, Heather Townsend and Jeanine Juliao and Bruce Williamson. But what about Mr. Ting?

Partially unsealed and docketed on July 15 is Malloy's letter stating that "Mr. Ting's testimony is critical. Mr. Ting is a comparator; he is the only eyewitness to several events that form the basis for Plaintiff's termination; and his statements and emails to the Department of State Human Resources Office formed part of the basis for terminating Plaintiff [REDACTION - FOUR LINES].

Now on July 19, an entire letter and all of its attachment is filed sealed by the US State Department.

And on July 21, this order: "ORDER granting [70] Letter Motion to Seal. By a letter dated July 19, 2021, Docket Entry No. 70, the defendants made an application to the Court that the June 17, 2021 letter through which they sought a pre-motion conference with the Court respecting the plaintiff's request to depose Harry Ting be filed under seal, and that access to the document be restricted to counsel to the defendants and attorneys from the law firm Selendy & Gay PLLC, who are representing the plaintiff. The application is granted. The Clerk of Court is directed to limit the viewing level for the June 17, 2021 letter to "Selected Parties" so that only counsel to the defendants and the plaintiff's counsel, attorneys from the law firm Selendy & Gay PLLC, can access the document. The defendants shall file a redacted version of the June 17, 2021 letter with the Clerk of Court so that members of the public can access the redacted version of the document. This order resolves Docket Entry No. 70. SO ORDERED. (Signed by Magistrate Judge Kevin Nathaniel Fox on 7/21/2021)." What's going on this case about discrimination at the US Mission to the UN? What's going on at the US Mission?

   Inner City Press, banned from the UN since July 3, 2018, will remain on this case.

It is Malloy v. US Department of State, et al., 19-cv-6533 (Gardephe / Fox)

***

Your support means a lot. As little as $5 a month helps keep us going and grants you access to exclusive bonus material on our Patreon page. Click here to become a patron.

Feedback: Editorial [at] innercitypress.com
SDNY Press Room 480, front cubicle
500 Pearl Street, NY NY 10007 USA

Mail: Box 20047, Dag Hammarskjold Station NY NY 10017

Reporter's mobile (and weekends): 718-716-3540

Other, earlier Inner City Press are listed here, and some are available in the ProQuest service, and now on Lexis-Nexis.

 Copyright 2006-2021 Inner City Press, Inc. To request reprint or other permission, e-contact Editorial [at] innercitypress.com