This is part 1 of two parts we want to post about this specific grievance case. We want to highlight this part of the curtailment process that’s called “voluntary” because it was not a voluntary one, but a “coerced voluntary curtailment”. We have no idea who are the individuals involved in this case, of course, but we are aware of how the so called “voluntary” curtailment has been misused and far from being voluntary in other cases in the past.
The chief of mission was supposed to “ensure that rigorous standards apply to curtailment requests.” Whatever standards were applied in this case could not be called rigorous by any stretch of the imagination. Good grief, the ARSO wrote a false report! As if that was not enough, a supervisor engaged in deceitful behavior. And State basically shrugged its admirable shoulders, and said who cares?
Record of Proceedings
FSGB Case No. 2019–030 | September 30, 2020
INTERIM DECISION (CORRECTED 10/05/2020)
We find here that the procedures for curtailing grievant violated 3 FAM 2443.2. The due process provisions of the regulation were not
followed. Grievant was given an ultimatum to voluntarily curtail, or he would be involuntarily curtailed, when the Ambassador had limited information and the grievant had not been given any of the due process rights outlined in 3 FAM 2443.2 and the guideline cables provided below. The applicable FAM, 3 FAM 2443.2 Involuntary Curtailment at Request of Chief of Mission, reads:
a. If the chief of mission determines that curtailment of an employee’s tour of duty would be in the best interests of the post [or] the employee, the chief of mission may ask that the employee’s tour of duty be curtailed immediately.
b. If the employee is an employee of the Department of State, the chief of mission should submit a request through the DIRGEN [Director General] channel to the Director General of the Foreign Service requesting curtailment of the employee. The request must:
(1) Include background information on any incidents that support the request;
(2) Confirm that the employee has been informed of the request and the reasons therefore; and
(3) Confirm that the employee has been advised that he or she may submit comments separately.
c. If the employee requests curtailment, the chief of mission should use the DIRGEN channel to:
(1) Inform the Director General of the chief of mission’s support of the employee’s request; and
(2) Explain fully the circumstances that, in the chief of mission’s judgment, justify immediate curtailment.
d. Except in cases of serious misconduct, criminal activities, or actions that have serious security implications, a chief of mission may offer the employee the alternative of submitting a request for immediate voluntary curtailment. If the employee is an employee of another agency, the request should be submitted to [their appropriate officials]. … The same supporting information required in 3 FAM 2443.2 should be used in requesting curtailment.57
According to the Decision Memo, the Ambassador invoked 16 STATE 27226, issued on March 14, 2016, Chief of Mission Instructions Regarding Conduct and Discipline Abroad, to determine that curtailment was necessary in this case. The summary describes the cable as the
first of two issued that date to provide guidance on conduct and discipline issues. The cable notes that COMs have full legal authority for the supervision of all government executive branch employees in that country.
The other memo issued on the same date, 16 STATE 27212, Curtailment of Employees Based on Conduct and Disciplinary Issues (Checklist), provides detailed procedures for handling curtailments. Among the relevant paragraphs are:
Par. 1. Curtailment may include the employee’s immediate departure from post, and can be voluntary or involuntary. As COM, you must ensure that rigorous standards apply to curtailment requests. Curtailments disrupt lives of employees and entail high professional and monetary cost from the Service in terms of lost productivity, service, and frequently, investment in training. Therefore, this authority must be used with judicious care and restraint.
Par. 2. If you, as COM, determine that curtailment of an employee’s tour of duty would be in the best interests of the post [or] the Service … you may request that the employee’s tour of duty be curtailed immediately. Per 3 FAM 2443.2, you should submit a request through the DIRGEN [Director General] channel to the Director General of the Foreign Service. The curtailment cable request must:
o include background information on any incidents that support the request;
o confirm that the employee has been informed of the request and the reasons therefor; and
o confirm that the employee has been advised that he or she may submit comments separately.
..HR strongly encourages post to share the request cable with the employee so the employee has the full report on which he/she can send comments.
Par. 3. Except in cases of serious misconduct, … you may offer the employee the option to request immediate voluntary curtailment in lieu of involuntary curtailment. If the employee requests voluntary curtailment, he/she should request immediate curtailment through the HR channel in a message addressed to his/her Career Development Officer (CDO) in HR/CDA (see para. 19 [checklist]). As COM, please ensure that you use the DIRGEN channel to confirm your support, or opposition to, the employee’s request and explain fully the circumstances that justify immediate curtailment.
Par. 13. Curtailments should first be vetted by a management team at post. …. Proper vetting throughout the process then allows the COM to be better able to determine whether to move forward with the curtailment request.
Par. 14. In all cases, the DIRGEN cable must include background information on the incident (s) that supports post’s decision. Except for cases of directed curtailment, the cable must confirm that the COM has discussed the proposed action with the employee and also confirm that he/she may submit separately, either by cable via the DIRGEN channel or email to the DG Direct e-mail address, any comments about the curtailment. HR will not approve any curtailment request that comes without supporting information.
Par. 19. D. [H]as the employee had the opportunity to discuss the situation with the DCM?
Par. 20. As applicable, the above elements should be addressed in a DIRGEN cable. The Department is committed to making the curtailment system work for the good of the Service and our employees, protecting both the authority of management and the rights of employees.
Grievant’s decision to curtail was not truly voluntary. Grievant did not initiate the curtailment. The Ambassador, according to what the RSO and HR told grievant on January 12, had decided that grievant had a choice to either curtail voluntarily or involuntarily. In doing so, he was exercising his right under 3 FAM 2443.2d to give the employee the option of taking a voluntary curtailment in lieu of an involuntary one. Given that ultimatum, the only way to prevent the potential adverse career effect was to choose “voluntary” curtailment. According to grievant, he was also given the inducement that if he chose “voluntary” curtailment, “all this,” which he could reasonably understand to mean any type of charge against him, would be withdrawn. Given the lack of denials, we credit grievant that this statement was made. Yet we know that, on January 14, before the curtailment took effect, the ROI had been closed without action by DS and referred to S/OCR. The case was not going away.
While the COM can decide the scope of the investigation leading to curtailment and all the elements of the checklist need not be followed, there was no emergency here. Grievant had never before been accused of threatening anyone or disciplined for any reason. There was only one alleged “indirect threat” and even the employee who reported it,REDACTED , told the ARSO investigating the incident that grievant was walking ahead of him and did not stop walking or physically confront him. Grievant had been separated from his staff once the threat was reported. There was no reason why a more thorough investigation could not have preceded the ultimatum.
While we are not finding that there is a set list of requirements, grievant received no assistance from post in making the decision. Grievant was told only in general terms of the allegations against him, and he was never informed of his rights in the process. For the January 12 meeting with the RSO and HROs, he was not able to have his AFSA representative present because that individual was away, and he was not allowed to have his wife as a substitute. He was allowed to have the accompany him. He was not informed that he could submit a written statement to the Director General to accompany the Ambassador’s recommendation, and he was not shown the decision memo to be able to respond. He was not shown the ROI until he obtained it through a FOIA request after his curtailment. He was not given the opportunity to speak to the Ambassador or the ACOM before the decision was made.
It is undisputed that the ROI was the only basis for the curtailment. Although the A&SB met with the Ambassador, they did not file a report and simply referred the ROI to S/OCR. The ROI was a very inadequate basis for making what the Department has identified as a very consequential decision for the service and the employee. We have already found that the ARSO falsely stated that grievant had been counseled for anger management issues. There are no statements from the witnesses, but only the ARSO’s summary. There is no explanation why the was not interviewed in greater detail or why the grievant and other employees who could have presented a more comprehensive picture of the credibility of the allegations were not interviewed. Moreover, as far as the record shows, there was no determination of whether or not grievant had any prior discipline.
After the REDACTED first met with the RSO, HR, and REDACTED on January 11, she told the RSO and HRO that she would believe grievant over REDACTED. Grievant had received no prior discipline or counseling, and the staff had made no prior complaints against him. The REDACTED was aware that REDACTED had received a low ranking from his prior rater, she had heard him express anger towards REDACTED, and she had counseled REDACTED, the other main witness, about being insubordinate towards grievant. She knew the staff were displeased with grievant’s strict enforcement of the rules, but she had never seen him use inappropriate profanity or be angry or bullying. These factors should have raised a red flag for the post and demanded a more thorough review before giving the ultimatum to grievant.
The timing of the ultimatum is particularly significant. As of January 11, when the Ambassador invoked his right to curtail grievant, he had only the report of the allegations. Grievant had not even been told of the allegations against him. It was not until two days later, January 14, that the ROI issued, the case was referred to S/OCR, and the A&SB met with the Ambassador to brief him. It was not until January 16 that the DHRO met with grievant in the evening, and grievant “chose” to voluntarily curtail. He curtailed the next day.