Via FSGB Case No. 2018-027

HELD – The Board held that the Department failed to meet its burden of proving that it did not violate agency policy when it imposed a second round of discipline (a two-day suspension without pay) after grievant had previously received several oral admonishments) for the same act of misconduct.

… Grievant accessed the CCD and reviewed the female friend’s visa records. He then sent an email on May 24, 2013 to the Consular Officer who had adjudicated the visa application, asking why the visa had not been approved and whether there was anything the applicant could do to “overcome” the disapproval.

The email read in part:

I explained to [the inquiring REDACTED Official] that the visa issuance process is an independent process done by the consular section at the respective embassy [sic] and that I have no involvement in the process or adjudication of the application, but that I would check with the embassy to see if there was anything that she could do or provide to overcome the refusal. Is there anything the applicant could do or provide to overcome the 214(B) refusal? Or is it pretty solid given no local employment and only having recently started her studies in business admin?

Grievant did not receive a response to his inquiry and he took no further action

CASE SUMMARY – In May 2013, grievant, a Diplomatic Security (DS) Special Agent, received a request from a professional colleague inquiring about a visa denial of a female friend of another colleague. Grievant accessed the Consular Consolidated Database (CCD) to determine who the Consular Officer was for the visa denial and drafted an email to that officer inquiring whether there was anything his contact could do regarding the denial. Within a few days, the Visa Chief at the post that made the visa decision, wrote to the Consular Integrity Division of DS (DS/CID) advising that grievant had apparently accessed the CCD without a work related need to do so. DS/CID passed the matter to the Chief of the Office of Investigations and Counterintelligence, Criminal Division (DS/ICI/CR). The Chief of DS/ICI/CR consulted with the Supervisory Special Agent of DS/CID and with the Chief of the Criminal Fraud Investigations Branch (CFI) before deciding to refer the matter to grievant’s immediate supervisors for whatever action they deemed appropriate.

Two of grievant’s supervisors opened administrative inquiries in June 2013, contacted grievant, learned from him that he immediately acknowledged the improper access of the CCD and each decided to give grievant an oral admonishment. One additional supervisor also admonished grievant orally. All management officials concluded that no further action was necessary. Grievant was so informed by at least two of these officials.

In the fall of 2014, the DS Office of Special Investigations (DS/OSI) informed grievant that it was opening an investigation into the same matter. During an interview with grievant and his counsel, grievant advised that he had already been counseled for this act of misconduct. He provided proof that he had been admonished; however, he was proposed for a three-day suspension that was later mitigated to two days. The suspension proposal was sustained by the Department and grievant served the two-day suspension.

A grievance regarding duplicative discipline was denied by the agency. On appeal, the Board concluded that all regulatory steps had been followed by grievant’s supervisor who initially determined that he was the appropriate official, in consultation with others at DS, to determine what discipline should be imposed. The Board further concluded that administrative inquiries were properly conducted by additional supervisors after evidence was gathered, grievant was consulted, and all appropriate factors were considered. The Board found that specific agency policy precluded grievant from being subjected to a second disciplinary process. Accordingly, the Board held that the Department was obligated to refund grievant’s pay and benefits lost during the suspension; his Official Performance Folder should have all references to the suspension proposal and decision removed; and that grievant’s OPF should be reviewed by reconstituted Selection Boards for each year (2017 and possibly 2018) in which the suspension letter was in the file.

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