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Via FSGB Case No. 2021–002
Held – Grievant proved by a preponderance of the evidence that the 2019 Foreign Service Selection Board (“FSSB”) committed procedural error in deciding to low–rank him and to refer his Official Performance File (“OPF”) to a Performance Standards Board (“PSB”). The Foreign Service Grievance Board (“Board”) rescinded the low ranking by the FSSB and its referral of grievant’s file to the PSB. Accordingly, the Board rescinded the recommendation by the PSB to separate grievant from the Foreign Service.
Case Summary – Grievant argued that the 2019 FSSB gave undue consideration of a discipline letter in his file and committed other procedural errors, in violation of its precepts, when it determined that his performance was deficient and referred his OPF to the PSB. Grievant contended that the PSB also violated its precepts by relying improperly on the discipline letter in reaching its decision to recommend that he be separated from the Service.
The Department of State (“Department”) posited that the FSSB properly considered grievant’s OPF, including the discipline letter, and complied with all precepts when it assessed deficiencies in grievant’s performance, issued a low–ranking statement, and referred his OPF to the PSB. The agency also argued that the PSB also followed its precepts when it assessed grievant’s performance failures, compared his file to those of 10 randomly selected colleagues of identical rank, and ultimately recommended that grievant be separated.
The Board held that grievant met his burden of proving that the 2019 FSSB committed procedural errors by low–ranking him and referring his file to the PSB. Accordingly, the Board rescinded the low–ranking and the referral as well as the subsequent PSB decision to recommend grievant for separation.
Excerpt from background of case:
REDACTED (“grievant”) is an FS–01 officer who joined the Foreign Service of the Department of State (“Department,” “agency”) in 1998 and began a career with assignments primarily in Africa and Latin America. In July 2016, he was assigned as the Deputy Chief of Mission (“DCM”) in the U.S. Embassy REDACTED (“embassy,” “post”).
On March 7, 2017, grievant does not dispute that he had multiple drinks at the embassy’s Marine House, followed by additional drinks at a local restaurant, after which, he returned on foot to his official diplomatic residence. On his way home, grievant was approached by a woman who asked if he wanted company. Grievant permitted the woman to accompany him to his residence where they continued drinking and she remained overnight. Grievant admitted that he initiated sexual contact with the woman and brought her to a bed in his guest room. There, he claims he fell asleep, but acknowledged that he did not recall all that happened. Early the next morning, the woman demanded money; grievant refused; and the woman began throwing things in the house. Grievant and the woman engaged in a physical altercation that was overheard by local embassy guards who responded to the scene. The woman was removed from the residence, taking with her grievant’s government-issued Blackberry. During her removal, the woman’s cell phone was damaged. She later returned with two local police officers and threatened to press charges against grievant. Grievant paid the woman $430 upon the advice of the Regional Security Officer (“RSO”) at post. The incident prompted grievant to be involuntarily curtailed from post in April 2017.
On June 9, 2019, Diplomatic Security (“DS”) completed a Report of Investigation (“ROT”) of the incident (“the embassy incident”), finding grounds for one specification on charges of Notoriously Disgraceful Conduct and Poor Judgment.’ During the DS investigation, grievant revealed for the first time that in 2015, he had been arrested REDACTED for driving under the influence (“DUT”). His failure to report this arrest within 72 hours, as required by 12 FAM 272, resulted in one specification of a third charge — Failure to Follow Policy.
Based on the facts reported in the ROI and a 2012 Letter of Reprimand (related to two additional instances of DUI while grievant served abroad), on June 29, 2018, the Department proposed that he be suspended without pay for 15 days. Grievant submitted both written and oral responses to the proposal. In a decision, dated January 28, 2019, the Deputy Assistant Secretary (“DAS”) for the Bureau of Human Resources” (“HR DAS”) sustained all of the charges and the recommended suspension. The resulting decision (“discipline letter”) was inserted in grievant’s OPF as required by Department regulations.
The 2019 Foreign Service Selection Board (“FSSB”) reviewed grievant’s file for possible promotion but determined to low rank him and refer his OPF to the PSB. In making its referral, the FSSB issued a “Statement Justifying Referral to Performance Standards Board” (also known as a Low–ranking statement (“LRS”)) which contained several references to the discipline letter and passing references to his 2015, and two 2017 Employee Evaluation Reports (“EERs”). The LRS noted deficiencies in grievant’s expected demonstration of leadership skills (including judgment), managerial skills, and communication skills.
Upon receipt of the referral and review of grievant’s file, the PSB decided to recommend him for separation for failure to maintain the standards of performance required for members of the FS-01 class in his career track. In reaching this decision, the PSB issued a letter, making frequent references to the discipline letter and occasional references to the Developmental Area (“DA”) of grievant’s April 2017 EER as well as grievant’s own statements in the same EER. As a result of the PSB recommendation, grievant was assigned to over-complement status in September 2020, where he remains pending the outcome of this grievance appeal.
Grievant reminds that he has already served the 15–day suspension after the agency decided this was the appropriate penalty for his misconduct. He notes that the agency considered separation for cause as an option but determined that a lesser penalty of suspension was appropriate. Grievant argues that the discipline and performance assessment processes are intended to be separate and distinct. He states that the PSB was not authorized to initiate separation for cause based on the discipline letter alone. Instead, it was responsible for assessing his performance and potential based on his entire OPF. Grievant contends that the PSB decision fell short of its responsibility by placing too much weight on the discipline letter and ignoring his impressive record of experience and contributions as appraised in multiple EERs. Accordingly, he states that the PSB decision is an impermissible second effort to discipline him for conduct for which he has already been sanctioned.
The agency asserts that a grievant may not challenge the judgment of selection boards.15 The Department also claims that the decision of the FSSB is entitled to a “presumption of regularity,” which the Board has previously upheld.16 The Department argues that this presumption should be extended to both the FSSB and the PSB in this case.17 It argues that the Board has cited the need for specific evidence to challenge the presumption of regularity of these board decisions and grievant has supplied neither. Finally, the Department notes that the discipline letter was, as grievant acknowledged, properly included in his OPF. It was therefore legitimately weighed by the FSSB and the PSB in assessing grievant’s performance and potential, consistent with their precepts.
The Board finds that the FSSB precepts were drawn to protect employees from what happened here – a low–ranking based on a single critical reference in a mandatory DA with no specific examples of identified performance deficiencies noted elsewhere in the employee’s
OPF. The FSSB was instructed to draw “. . . on material preferably from more than one rating period and preferably from more than one rating official.”28 (Emphasis added). The FSSB precepts also sought to protect employees from being sanctioned twice for the same misconduct by prohibiting sole reliance on discipline letters when the FSSB is making decisions about low–ranking.
The Board finds that grievant has met this burden of proving a procedural error committed by the 2019 FSSB. The Board concludes that the FSSB LRS inadequately identified three alleged deficiencies, in violation of the applicable precepts. This procedural error resulted in an improper low ranking. Because the FSSB error led directly to the recommendation by the PSB, we find there was no legitimate basis for referring grievant’s OPF to the PSB and, in turn, the PSB was not authorized to recommend that grievant be separated. Both the low-ranking and the recommendation for separation must be rescinded due to the initial procedural error.
The grievance is upheld. The Department is ordered to:
1. Rescind the FSSB 2019 low ranking letter and referral to the PSB,
2. Rescind the PSB’s recommendation for separation from the Foreign Service,
3. Reconstitute an FSSB for 2019. If the reconstituted FSSB does not recommend grievant for promotion, the Department shall extend his TIC by one year to account for not being reviewed for promotion in 2020.
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