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FSGB: 5-Day Suspension For Inappropriate Comments and Unprofessional Conduct “Reasonable”

 

Excerpt from ROP/FSGB Case No. 2020061-September 3, 2021
ROPs available to read via FSGB.gov:
Held – Grievant failed to meet his burden of proving by a preponderance of the evidence that a five-day suspension for two charges (Inappropriate Comments and Unprofessional Conduct) with a total of 22 specifications was disproportionate disciplinary action and was untimely. The Board, finding 20 of 22 specifications against grievant justified, found that the proposed disciplinary action was reasonable, and denied grievant’s appeal.

Summary – Grievant served as the FP-02 Facility Manager at a post abroad from summer 2014 through summer 2017. According to a Report of Investigation (ROI) from the Department of State’s Office of Civil Rights (S/OCR), grievant allegedly harassed female employees at post by making inappropriate comments and displaying overly aggressive behavior towards them. Based on the ROI, the Bureau of Global Talent Management, Office of Employee Relations (GTM/ER) proposed a five-day suspension for grievant that the agency’s Deciding Official sustained. After grievant’s agency-level grievance challenging the five-day suspension was denied, he then appealed to the Foreign Service Grievance Board (FSGB, Board).

Grievant contested most of the specifications in both charges and contended that his (then undiagnosed) medical conditions were not taken into consideration in the agency’s assessment of his grievance. He also maintained that the disciplinary action was disproportionate to the alleged offense, the Douglas Factors were not appropriately applied, the comparator cases were misinterpreted, and the discipline was untimely.

The Board found that grievant did not prove that the Department failed to assign due weight to his previously undiagnosed medical conditions or misapplied the Douglas Factors when it decided the disciplinary action. The Board also found the proposal to discipline the grievant timely, as it was proposed seven months after GTM/ER received the S/OCR investigation results. The Board dismissed two specifications of Inappropriate Comments and sustained 20 specifications in the two charges against grievant. In view of the far greater number of specifications in the two charges against grievant when compared to the number of specifications in the charges against the employees in comparator cases, the Board found the five-day suspension well within the zone of reasonableness. The Board denied the grievance, finding that a reduction in penalty was not justified in view of the inordinate number of sustained specifications.
II. BACKGROUND
REDACTED (grievant) was serving as the FP-02 Facility Manager at the U.S. Embassy REDACTED  (Embassy) from summer 2014 through summer 2017. His responsibilities included maintenance, supervision of construction, and renovation of projects at the Embassy and six constituent consulates in the host country.
Grievant directly supervised four employees and had oversight for nearly two dozen skilled tradesmen, custodians,and gardeners. He managed an annual budget of over $4 million and was responsible for over $290 million in U.S. Government assets. Grievant stated that he lost annual leave due to a “crushing” workload that placed his section under constant stress not only to comply with regulatory mandates, but also to manage end-of-year funds. He attested that from years 2015 to 2016 he gained 45 pounds and suffered from insomnia, and then during consultation and training leave in July 2017, at a visit to his personal physician, he initially was diagnosed with autoimmune disease. Follow-up appointments in August 2017 revealed a diagnosis of type 1.5 diabetes, high blood pressure, and cholesterol issues.
Grievant attributed his behavior in the office (irritability, mood swings) and his medical conditions to work-related stress and stated that he has had no other incidents of unprofessional conduct with colleagues since treatment of his medical conditions.
The Department’s Office of Civil Rights (S/OCR) received in 2017 reports of grievant’s alleged sexual harassment, consisting of inappropriate comments and confrontational behavior directed at female colleagues. Consequently, S/OCR initiated an investigation. The Bureau of Global Talent Management,2 Office of Employee Relations (GTM/ER) received S/OCR’s Report of Investigation (ROI) on July 5, 2017, which included complaints about grievant’s alleged harassment of five female staff members in the form of loud bullying, demeaning comments, invasion of their personal space, and complaints about them to third parties. Reportedly, grievant was prone to storming out of meetings when colleagues’ views were not aligned with his own.
Charge l: Inappropriate Comments

3 FAM 4314 Grounds for Disciplinary Action (in relevant part)
(10) Any misconduct that does not promote the efficiency of the Service during or outside of established work hours.

Specification 1: Within the first six months of arriving at post in August 2014, you  came to the FMC
3 Office, and loudly shouted at the employees, “Where’s so and so,” and “Who’s working here,” in an angry and intimidating manner.

Specification 2: In a meeting in or about December 2014, you called her supervisor, , “a bully,” “a scumbag” and “scum of the earth.”


Specification 3: In a meeting in or about December 2014, you called FMO “incompetent” and “a bully.”


Specification 4: In April or May 2016, you advised , “Don’t go to an EEO Counselor if you have a problem.”


Specification 5: You stated within earshot that “Someone is poisoning the atmosphere here,” which she and at least one other witness believed referred to her.

Specification 6: When asked you a question about the condition of a ceiling, you shouted at her, “OH! I can’t talk about this now!! GET OUT of my office.”

Specification 7: In May 2016, you directed to “shut up and sit down” during a project meeting.


Specification 8: In April or May 2016, in front of colleagues at a section meeting, you commented “You have not shown me your skills.”


Specification 9: On more than one occasion, you disparaged the skills of architects and interior designers , even though you were aware that her background is in those fields.


Specification 10: On or about August 10, 2016, you belittled in a meeting with the DCM Deputy Chief of Mission [DCM] by stating that she was only a project manager by title and her title didn’t mean anything.


Specification 11: In a meeting in your office on or about August 12, 2016, you became red in the face and shouted at and FCS employee that you “could not handle the conversation” after they remarked that the ceiling was not in an acceptable state.

Specification 12: On or about June 17, 2017, you commented that glasses were “glasses feminists wear,” implying that you did not like them.


Specification 13: In a March or April 2016 section meeting, you stated to , in front of colleagues, “What did you do to your hair? You look like [expletive]! Your hair really looks like [expletive]!”


Specification 14: In October 2016, you asked who she voted for in the U.S. election. When she would not answer the question, you stated, “Well if you voted for Hillary, you have no morals or ethics.”


Specification 15: In mid-February 2017, you made a comment that after the election, “the pendulum is moving back” and that feelings are not going to be validated in the workplace anymore.


Specification 16: On or about January 24, 2017, throughout a conference call with [the Consul General (CG)], you muted the call to tell how much you hate [the CG] and that he is a “piece of [expletive].”

Specification 17: During a large meeting with management staff with then-Office Director , you stated, “Marriage is a good thing for you. You look so much nicer.”


Specification 18: In March or April 2016, you made an inappropriate comment to [B], whose husband was recovering from a medical issue, pointing at her aggressively and shouting, “You’re not taking care of your family.”

Charge 2: Unprofessional Conduct

Specification 1-4

ii. Alternative Solutions

The Department rejects grievant’s assertion that he has no need for disciplinary action. It points to the multiple times he was counseled on his behavior and notes that he did not modify his behavior even after he was advised to change how he interacted with people. The agency also refers to grievant’s 2017 Employee Evaluation Report (EER) that highlights his interpersonal skills in dealing with staff as an area for improvement (AFI). Therefore, the Department concluded that a lesser penalty such as a letter of reprimand would not likely have a deterrent effect on grievant.

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