FSGB: “Service Need Differential” Posts Get a Bad Recruitment Ad

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According to the Foreign Affairs Manual, a ‘Service Need Differential’ [SND] is an allowance of 15 percent of base salary for employees serving in Historically-Difficult-to-Staff (HDS) posts with an at least 20 percent hardship differential and a standard two-year tour of duty, when the employee agrees to serve for a third year.  Some of the “at least 20 percent” hardship differential posts includes Albania, Azerbaijan, Egypt, a couple posts in China, and more. Djibouti, Ghana, Haiti, Afghanistan, CAR, Cuba, DRC, and some posts in India are in the 25 percent category. Afghanistan, Somalia, Bangladesh, Chad, Iraq, Pakistan are some of the 35 percent hardship posts. The hardship considered includes physical and social isolation; political violence, terrorism and harassment; medical and hospital availability; environmental conditions and sanitation; crime; climate; housing and infrastructure to name some. See more here.
The grievance case below concerns SND payments to a DS agent who served at one of these “historically-difficult-to-staff” posts.  Instead of the State Department just acknowledging that a mistake had been made in this case, the State Department made the argument that the grievant, “as a mid-level employee with several years of experience and facing his third overseas assignment” should have known better to ask the right questions. Whoa!  The agency is saying, it’s his fault, hey?
Footnote indicates that “with respect to the AO’s [Assignments Officer] indication of the candidate’s SND election in the assignment panel notes, the record indicates that the assignment panel notes did in fact include a comment that grievant’s SND decision was “pending.” However, grievant denies that he made that (or any) SND-related election, or that he communicated to his AO that he had elected to defer his decision until after arrival at post.”
The FSGB decided that the grievance appeal was sustained. The Department was ordered to reimburse grievant for SND he would have received from the date of his arrival at post, consistent with the provisions of the Back Pay Act. 5 U.S. Code § 5596.
Via FSGB Case No. 2020-050

HELD – The Foreign Service Grievance Board found that grievant met his burden to show that the Department failed to implement its Standard Operating Procedure SOP B-22 in the process of assigning him to a Service Need Differential (SND) post, a procedural error that resulted in harmful denial to him of SND payments for a period of time. The grievance was sustained.

CASE SUMMARY – Grievant accepted a handshake for assignment to an SND-designated post. He argued that in the process of assigning him to post, the Department failed to implement any of the “Assignment Procedures” specified in its relevant Standard Operating Procedure, SOP B-22. These included provisions that the Assignment Officer should contact grievant by email, provide information regarding the SND Program (including a specified “standard disclosure” covering SND options and the consequences of each), request the employee to indicate which SND option he/she elects, and relay that election to the assignment panel. The SOP advises that an assignment to an SND-designated post should not be made unless the foregoing provisions are carried out. The assignment panel, on the basis of notes of unspecified origin to the effect that grievant’s SND decision was “pending,” assigned him for a two-year tour-of-duty which made him ineligible for SND unless he should later request, and be granted, an extension of his tour to three years’ duration.

The agency denied that grievant had carried his burden of proving that his Assignment Officer (AO) failed to implement SOP B-22, but that even if the AO had failed to do so, grievant as an experienced, mid-level bidder, should not be absolved of any and all responsibility to understand the SND assignment procedures as they applied to him and to seek clarification and/or assistance if he were confused or concerned about the process. Further, the Department argued that in the agency-level grievance, it had provided to grievant (albeit on different grounds, which are abandoned in the instant grievance appeal), all relief to which he is entitled.

The Board found factually that the provisions of SOP B-22 had not been implemented by the Department in grievant’s case. The Board found further that the language of the Assignment Procedures of SOP B-22 is particularly directive, going as far as to advise that assignment to an SND post should not be made unless its stipulated provisions have been carried out. On the issue of harm, the Board found that the agency’s failure to implement the SOP constituted a significant procedural error which denied grievant the opportunity to receive information, counseling, and assistance stipulated in the policy before the panel assigned him to a two-year non-SND assignment which record evidence established he did not elect. The Board ordered payment of SND from the date of grievant’s arrival at post.

Background:

Grievant is an FP-03 Special Agent with the Bureau of Diplomatic Security (“DS”) who has worked for the Department since 2012. He is currently serving as an Assistant Regional Security Officer (“ARSO”) at post, his third assignment. The matters grieved in the instant action concern the manner of grievant’s assignment to, and extension at, post, as they impacted his receipt of SND payments.
[…]
On January 23, 2019, the Department issued cable , captioned “(PII) TMONE – ASSIGNMENT NOTIFICATION – PERSONNEL ASSIGNMENT ([grievant’s name and social security number redacted] FP-03, 2501, Special Agent) (“TM-1,” “the assignment cable”).3 Among other information pertaining to the position, the TM-1 noted that the assignment was for a 24-month tour with an estimated arrival date at post of August 2019. The cable contained the names of grievant’s Assignment/Training Officer [sic], Assignment Technician, and CDO as points of contact. The TM-1 did not identify the post as an SND- designated post, nor did it provide any information on the SND Program or how to participate therein.
[…]
After being informed, in a general manner, of the SND program by colleagues, grievant reached out on November 25, 2019, to post’s human resources officer (“HRO”) by email and requested “procedures to extend for one year and activate SND[.]”5
[…]
After repeated attempts by grievant to obtain a decision on his extension request and SND, on June 11, 2020, the Department finally issued a cable approving his extension for a third year at post. The extension approval cable noted that his election of a 36-month tour made him eligible for SND but did not provide further specifics such as what the effective date of SND eligibility was. Grievant subsequently was informed that the SND payments would commence as of the date of the extension approval cable, i.e., June 11, 2020.

On July 20, 2020, grievant filed an agency-level grievance, arguing that the Department’s failure to follow its pre-assignment SOP procedures for SND posts, compounded by subsequent delays in processing his extension request, improperly deprived him of a financial benefit (i.e., timely commencement of SND payments). As a remedy, he sought retroactive payment of SND (with interest) starting from the date of his arrival at post.

On September 24, 2020, the Department issued an agency-level decision, granting the grievance in part, and denying it in part. The deciding official (“DO”) stated that she was not persuaded that grievant had shown that the Department had failed to follow SOP B-22, finding further that grievant should not be “absolve[d] … of any and all responsibility regarding initiation of the SND process.” Grievance Appeal Submission (“Appeal”), Attachment 2 at 5. She therefore denied that part of the grievance. However, while noting grievant’s delay of over six months in initiating his extension request, the deciding official found that the Department had also let the request sit “idly” for three months. She consequently granted partial relief, directing that SND should be paid effective March 10, 2020, the date on which post issued its extension request cable.

State Department’s Oh, Dear/Even If Argument

The Department argues that record evidence shows that when the panel initially assigned grievant to post, the notes on which it relied stated that grievant’s SND decision was pending. This is consistent with the portion of the SOP “which outlines the employee’s right to delay his/her SND decision until after their [sic] arrival at post . . . .” Response at 5. According to the Department, grievant has failed to offer any evidence that the AO did not discuss the SND program with him or inform him about the elections. The absence of any comments in the “Remarks” section of his TM-1 assignment cable (which grievant advances as evidence that he was not properly advised of SND options before he was assigned to post) is not dispositive of a failure by the AO or CDO to implement the SOP.

The Department also argues that even if the AO and/or CDO had failed to implement the SOP (which the Department denies), “[grievant] should not be absolved of any and all responsibility regarding the initiation of his own SND process, especially if he sought to enjoy the benefit of receiving payments as soon as he arrived at post.”13

Also, if you’re going to a post no one wants to go, you should know more than your Assignments Officer?

The Department further argues that grievant, as a mid-level employee with several years of experience and facing his third overseas assignment, should have recognized that he was bidding on an SND post, and if he had any questions about SND bidding procedures, he knew or should have known to contact his AO and/or CDO for guidance and assistance. However, we find the details of the SND program are sufficiently arcane that the Department felt the need to emphasize the special responsibilities of human resources personnel. The language of SOP B-22, which grievant could not have been expected to know as it is not a familiar Department FAM or FAH provision, is quite particular. It bears repeating that the principal provisions of the Assignment Process fall to the AO and that the language is uniformly directive, not permissive. The SOP directs the AO to contact the employee by email, and one practical consequence of this requirement is to ensure that there be an official record of the communication. The SOP states that the purpose of the email is to explain the SND program, and to ask that he/she make an election among the various SND options (including no-SND and deferral of decision). The AO is further directed to “use the following standard disclosure when contacting the employee.” Half a page of stipulated language explaining the three SND options, the implications of each, and the FAM authority follow. As noted supra, the SOP states in bold typeface that “No assignment for an SND-designated post should be made” unless the AO has advised the employee of the SND options and their implications. The totality of the Assignment Procedures language bespeaks a particular intent that it be implemented to ensure that bidders such as grievant, regardless of experience, be informed uniformly of the program and its details. Accordingly, we find that grievant should not have been expected to be aware of the requirements of the SND program but should have been able to rely on the unique expertise of his AO and the requirements assigned to the AO to provide the information needed to make a choice before his assignment began. Having considered all of the resources to which the Department has pointed, we find that absent the AO’s briefing and support mandated by the SOP, the information in the other Department sources would not necessarily be sufficient, and might even have been meaningless, without the provision of that required context.

The Grievance Board Finds “Harm”

The Department argues that grievant has failed to prove harm resulting from any violation of the SOP, as he has not presented any evidence that he wished to elect, or would have elected, a three-year SND tour. Our considered view is that the language of the Assignment Procedures of SOP B-22 is of a particular character that bespeaks a concern that the procedures be implemented. That is understandable, inasmuch as the SND Program exists to incentivize candidates to bid on historically difficult-to-staff posts, and the SOP seems obviously formulated to ensure that candidates make informed choices among the unique options of the SND Program within a transparent process. In the instant case, the Department’s failure to implement the particularly directive provisions of the SOP denied grievant an opportunity that he would have otherwise had, and which the SOP seems clearly crafted to provide, to be contacted in writing (email), counseled on the basis of prescribed standard language regarding the SND options and implications, and to have his election solicited and transmitted to the panel as the basis for assignment; failing the foregoing, the SOP says that an assignment should not be made. The harm then to grievant was the lost opportunity.

We would like to make an observation about this finding. In finding that failure to implement the SOP deprived grievant of the opportunity to elect a three-year SND tour under the SOP Assignment Procedures, we do not seek to supply an answer to the counterfactual- hypothetical question of whether grievant would have elected a three-year tour if the AO had in fact implemented the SOP. We acknowledge that there is no contemporaneous evidence that he would have made that election prior to his arrival at post. Nonetheless, the harm we find is not that grievant was denied SND payments in accord with an inferred election to be paneled for three years, but rather that he was denied a procedural opportunity pointedly stipulated in the SOP when the AO failed to inform him about the SND Program and solicit his election after he accepted the handshake and prior to paneling him to a two-year non-SND tour. We see no alternative remedy to compensate grievant for this harm other than to order SND to be paid from the date of grievant’s arrival at post.

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