2008 Annual Report on Foreign Service Grievance Now Online

I don’t know about you but — every time I visit the Foreign Service Grievance Board website, I feel sorry for these folks. The FSGB website is like a relic from an Internet cold war, frankly in a lot worse state than the SFRC website. All the documents are still posted in MS Word, the search function is not terribly helpful and there is no option to search/browse its pending or resolved cases. I must say that considering the website/social media improvements at State, this one is the poor, poor cousin indeed, and I’m not sure help is on the way. But they are hopeful, writing:

We hope to continue to improve the process by increased use of conferences to better focus issues at earlier stages of the process and decrease unnecessary paper filings, by improvements to our website (which presently is hampered by budgetary considerations), and by reductions in the length of some of our rulings (to enhance the readability of the decisions and better highlight the analysis that is central to our holdings in a given case).

In any case — in 2008, 57 cases were filed at the FSGB. Majority of the cases were Employee Evaluation Reports (EERs) related. I could not tell from the report how many cases are currently pending, but 53 cases were closed in 2008, disposed as follows:

Agency Decision Affirmed 16

Agency Decision Reversed 16

Settled/Withdrawn 15

Dismissed 6

Terms explained: “Agency Decision Affirmed means that the grievance filed with the Board was denied and the grievant did not prevail. Agency Decision Reversed means that the grievance was sustained in whole or in substantial part. Dismissals were cases in which the Board found it lacked continuing jurisdiction to proceed. These cases included dismissals due to untimeliness, mootness, and lack of subject matter jurisdiction.”

The average time for consideration of a grievance, from the time of filing to a Foreign Service Grievance Board decision was a total of 37 weeks.

The Annual Report which goes to the Director General of the Foreign Service and to both the Senate Foreign Relations Committee (SFRC) and House Foreign Affairs Committee (HFAC) reports that “None of the cases decided in 2008 reversed long-standing Board precedent; however, one case established new ground on the legal issue of estoppel. Additionally, a number of themes emerged that are noteworthy.” Excerpts below:

EERs and OPFs
Employee evaluation reports (EERs) and official performance files (OPFs) are at the heart of the Foreign Service promotion and retention system. Of the cases decided by the Board in 2008, almost one-third involved those issues. This is consistent with the Board’s case load in recent years.

One of the more significant EER cases was FSGB Case No. 2008-006 (December 31, 2008), in which the grievant alleged that he had never been counseled on supposed deficiencies that ultimately led to his being denied tenure. Counseling, confirmed by a written counseling statement, is an explicit regulatory requirement for untenured employees. Although the agency invalidated a key counseling certificate that had been provided after the rating period, it nevertheless found that the rater had provided sufficient oral counseling, and that written counseling during the prior rating period had given the grievant adequate notice that he needed to improve certain skills. The agency also found that the tenure board had drawn its own conclusions with respect to one area for improvement not noted by the rater, and that it could do so without providing counseling.

The Board reversed the agency decision. It found that written counseling outside the rating period did not fulfill the Department’s obligations under the regulations, and that the claimed oral counseling was not proven to have, in fact, taken place. The Board also confirmed its earlier decision that the requirement for counseling applies to agencies as a whole, not just the rater and reviewer, and that the tenure board could not make decisions based solely on its own conclusions regarding deficiencies if the employee had not been counseled on those deficiencies.

A recurring theme in the EER cases was a claim that the EER contained alleged inaccuracies, omissions, errors, or information of a falsely prejudicial character which was or could have been prejudicial to the member. Those claims were often coupled with claims that the EERs had not been processed according to the regulations. In a number of these cases, the challenged material had already led to the employee being low ranked. Several of the cases involved claims that an employee had not been promoted because documents were missing from the employee’s OPF. The Board looks at the circumstances of each case to determine the potential effect of the missing documents.

In FSGB Case No. 2008-036 (November 20, 2008), the Board found that the omission of a Superior Honor Award from an employee’s OPF had not disadvantaged him in consideration for promotion. However, in FSGB Case No. 2008-027 (November 17, 2008), the Board found that a missing Meritorious Honor Award and narrative may have been a substantial factor in grievant’s failure to be promoted or receive a meritorious step increase. That case was remanded to the agency to show that grievant would not have been promoted or received a step increase had the error not occurred. Similarly, in FSGB Case No. 2006-036 (March 17, 2008), the Board found that a missing evaluation may have affected the grievant’s chances of being promoted.

One case did established legal precedent, perhaps of particular interest to IT specialists:

FSGB Case No. 2007-034 (July 30, 2008) was an unusual case that established legal precedent when the Board found that the agency was estopped from denying the grievant incentive pay under the unique circumstances present. The grievant was an Information Technology Specialist who made the decision to accept an employment offer that involved a significant pay cut from his previous salary, only after having been assured by the agency personnel specialist that he would be receiving a 15% incentive payment in addition to his base salary. After the grievant had left his former job, moved his family overseas, and been employed for a month, he was advised that he was not eligible for the incentive pay, since he had earned the certificates needed to qualify before he was employed, rather than after. The Board found that all the elements for equitable stoppel were present: misrepresentation by someone who had actual authority to make the salary offer; good faith reliance by the employee; and financial detriment resulting from that reliance. It also found that the case was distinguishable from Office of Personnel Management v. Richmond, 496 U.S. 414 (1990), in that the payment did not violate law or regulation. The Board sustained the grievance and the agency was directed to pay the allowance retroactively.


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Update 10/09/09:
It looks like this report had been pulled down and is no longer available at the FSGB website. Click here if unable to locate the file at the FSGB site.

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