Foreign Service Grievance Board (FSGB No. 2008-040)
HELD: The Cohort Grievants established by preponderant evidence that they were each eligible for consideration for performance pay when at the end of the 2006-2007 evaluation period, they were members of the Senior Foreign Service whose most recent evaluation covered a period of at least 120 days. The Board concluded that the Department’s policy of reading into its regulations an additional unwritten requirement of eligibility – that employees also have been members of the Senior Foreign Service for at least a period of 120 days by the end of the rating period – is not supported by the regulations that impose no time in-grade requirement for Senior Foreign Service Officers who otherwise meet the stated eligibility requirements.
Sixty-eight Senior Foreign Service Officers (Cohort Grievants, the cohort, grievants) collectively grieved a decision by the Department of State (Department, agency) denying them the opportunity to compete in 2007 for performance pay under the Foreign Service Act (FSA), based upon the Department’s unwritten policy that only employees who had been members of the Senior Foreign Service for a period of at least 120 days by the end of the evaluation period were eligible for review. The Cohort Grievants claimed that a plain reading of the applicable regulations made them all eligible for performance pay reviews even though none had been in the Senior Foreign Service for 120 days by the end of the rating period. The Board concluded that, pursuant to the provisions of 3 FAM 2872.2, eligibility for performance pay review requires only that an employee be a member of the Senior Foreign Service at the end of the rating period and that the latest performance evaluation cover a period of at least 120 days, not that the SFSO have been a member of the Senior Foreign Service for 120 days. Since all members of the cohort met these requirements, all are entitled to appropriate relief.
The case is remanded to the agency (State) with the following instructions:
1. Within sixty days of receipt of this decision, the Department shall convene an evidentiary performance review for each member of the grievance cohort by an appropriate SFS selection board (one for generalists and one for specialists).
2. For all members of the cohort who are recommended for performance pay, the Department shall convene a Senior Foreign Service Performance Pay Board (reconstituted PPBs) (one for generalists and one for specialists) to review the performance folders of such employees.
3. The reconstituted PPBs shall employ the same standards and precepts as the 2007 PPBs.
4. The Department shall make whole all grievants who would have received performance pay in 2007 had they not been improperly treated as ineligible. The make whole relief will be determined in accordance with applicable law and regulation, including the Back Pay Act, 5 U.S.C. § 5596.
I have converted the FSGB decision in Word document to a PDF file. Read the whole thing here.