2009 FS Grievance Board Annual Report, Fresh from the Oven

The 2009 Annual Report from the Foreign Service Grievance Board just came out.  The report provides information on the operations and responsibilities of the Board during calendar year 2009 and complies with the reporting obligations imposed by Section 1105(f) of the Foreign Service Act (22 U.S.C. §4135(f)). The Report includes information as to the number and types of cases decided and their disposition and narrative regarding the current and historical operation of the Board.

The Annual Report says that majority of cases are decided without hearings on the documents submitted  for the record, in keeping with the general preferences of the parties and reflecting the fact that potential witnesses are often located at a number of locations across the globe. The Board does hold hearings, however, in appropriate cases. Two full hearings lasting a total of seven days were held in 2009.

2009 Case Load

The number of new cases docketed at the Board in 2009 was 43, down slightly from the number of cases filed annually in the prior four year period. Given the small size of the cases docketed, however, and the variability in case filings shown over the years, it is premature to draw any conclusion from this single year decline. As in the past, the vast majority of cases were filed by Foreign Service Officers with the Department of State, a fact that mirrors the relative number of Foreign Service employees at the State Department when contrasted with those employed by other foreign affairs agencies.
The bulk of the cases filed in 2009 involve challenges to Employee Evaluation Reports (EERs), disciplinary action, or financial claims (consisting either of objection to salary offsets imposed by the agency or claims for pay, including allowances or differentials).

On EERs and OPFs

As has been the case in recent years, a high percentage of the cases considered by the Board this year involved challenges to decisions by the promotion and retention boards that were based on the grievant’s Employee Evaluation Reports (EERs) and official performance files (OPFs). The Board’s decisions upheld the agencies’ decisions in approximately half of these cases and found in favor of the grievants in the other half.

Two cases involved the unusual circumstance of State Department employees who had been criticized in Inspector’s Evaluation Reports (IER). The Office of the Inspector General (OIG) routinely carries out periodic assessments of posts, which include reports on post management (the Ambassador and Deputy Chief of Mission).

These reports are then included in the OPFs of the officials. The overriding purpose is to assure that upper level post management is not immune to criticism as a result of their positions of authority and physical distance from their own supervisors. However, the OIG may also issue “corrective” IERs for other employees, when information surfaces that the EERs for such employees are inaccurate, either in a positive or negative direction.

The grievant in the first case, FSGB Case No. 2008-012 (April 17, 2009), was a political officer who received a “corrective” EER criticizing his managerial performance while head of the Political Section at post. The IER, based on comments provided by confidential sources, concluded that the assessments of grievant’s managerial skills in his EERs were too positive and did not present a balanced picture.

Although the Board reaffirmed that while due process did not preclude the inclusion in IERs of critical comments from anonymous sources that had been guaranteed confidentiality, care had to be exercised when these IERs were placed in the employee’s OPF. When challenged, such statements needed to be sufficiently corroborated by named sources to allow the grievant a meaningful opportunity to challenge the truth of the criticisms. In this case, the Board found that some of the negative findings and conclusions in the IER were sufficiently corroborated, and others were not. It also found that grievant had no knowledge of the deficiencies noted in the IER and had never been counseled with regard to them, violating his substantive right to be counseled and given an opportunity to improve. The Board ordered that the IER be expunged from grievant’s file.

In the second case, FSGB Case No. 2008-018 (February 11, 2009), the IER assessed the performance of an FS-02 political officer during the ten-month period he acted as Chargé at post. The grievant presented evidence that contradicted the criticisms included in the IER. The Board found that the Department could not rely solely on the summaries of confidential sources in the face of direct refutation. Fairness required that grievant either be given an opportunity to discover and challenge the confidential sources or to confront independent corroborative evidence. The Board directed that the IER be expunged from the employee’s OPF.
On Disciplinary Cases

The Board decided 11 cases in 2009 in which grievants challenged disciplinary action by the agency. In five of those cases, the Board upheld the discipline imposed.

In six cases, it upheld the discipline in part, sustaining some, but not all, charges and/or mitigating the penalty. The cases involved a variety of circumstances, including improper use of diplomatic security identification credentials to utilize the Law Enforcement Officer entrance at an airport; loss of control of a government-issued weapon; altering language in an EER after it had been finalized; misusing the diplomatic pouch by importing a computer duty free for a Foreign Service National employee; engaging in sexual relations with prostitutes (separation for cause); lack of candor with a supervisor; violating the Department’s Policy on Consensual Relationships between Supervisors and Subordinates; violating the Department’s Workplace Violence Policy; undertaking unauthorized business activities in the officer’s country of assignment; and failure to secure classified materials. Many of the cases implicated questions as to whether the penalty meted out to the grievant was consistent with penalties issued to employees in prior similar cases.
Annual Report 2009 – Statistics

A. Total cases filed 43
B. Types filed
EER 16
Financial 7
Disability 0
Discipline 13
Separation 4
Assignment 2
Implementation Dispute 0
Other 1
C. The following dispositions were cited for the 53 cases closed in 2009:
Agency Decision Affirmed 16
Agency Decision Reversed 14
Partially Affirmed/Partially Reversed 7
Settled/Withdrawn 16
Dismissed 0

Note: 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 refer to cases in which the Board found it lacked jurisdiction to proceed.
D. Oral hearings 2 (for a period of 7 days)

E. Mediations 2

F. Interim relief 12

G. Average time for consideration of a grievance, from the time of filing to a Board decision, was 41 weeks.

H. There were 41 cases pending before the Board as of December 31, 2009.