Daily Archives: December 16, 2021

FSGB: Selection Boards Cannot Rely Almost Exclusively on Discipline Letters For Low-Ranking

December 16, 2021 By in DCM, Foreign Service, FSOs, Grievance, Harassment, State Department Tags: , , , , , ,

 

Via FSGB Case No. 2021-019 | September 28, 2021
Held – Grievant proved by a preponderance of the evidence that the 2020 Foreign Service Selection Board (“FSSB”) committed procedural error in low-ranking him.
Case Summary – Grievant argued that the 2020 FSSB effectively relied only on a discipline letter in his Official Performance Folder (“OPF”) when deciding to identify him for low-ranking, a violation of its Procedural Precepts. While the FSSB also referenced a Developmental Area (“DA”) from his 2018 Employee Evaluation Report (“EER”), grievant argued the FSSB misinterpreted the DA. Moreover, he maintained, the FSSB was required to substantiate the discipline letter and the DA with examples from his evaluations, which it did not do. Grievant argued that the FSSB cannot low-rank him for failing to demonstrate growth without citing examples from his evaluations for the last five years to substantiate its finding, which it failed to do. Grievant asked that the low ranking be rescinded and he be mid-ranked.
The Department of State (“Department”) noted that the discipline letter was correctly included in grievant’s OPF and therefore was appropriately available for review by the FSSB. The FSSB clearly stated in its low-ranking statement (“LRS”) that it had reviewed the past five years of grievant’s evaluations as required by its Procedural Precepts. The FSSB properly linked grievant’s conduct as discussed in the discipline letter to performance standards, skills, and competencies. The FSSB referred to both the discipline letter and the 2018 EER, meeting the standard for specific references established in the FSSB Procedural Precepts. The expectation of professional growth is implicit in the appraisal process and does not require a separate definition. Grievant also failed to place a rebuttal letter into his file although given the opportunity to do so.
The Foreign Service Grievance Board (the “Board”) found that the LRS relied inappropriately on the discipline letter, without the supporting examples from evaluations which are required by its Procedural Precepts. The LRS made a passing reference to the 2018 DA that came from the same rating period as the discipline letter and was not substantiated by examples from relevant EERs as required by the FSSB Procedural Precepts. The LRS inappropriately faulted grievant for failing to demonstrate growth in two specific areas without citing evidence from his OPF. Grievant’s decision not to submit a rebuttal to the discipline letter is irrelevant.
The Board granted the grievance and ordered the Department to rescind the low-ranking and amend grievant’s record to show mid-ranking.
Details:

REDACTED(“grievant”) is an FO-01 Economic Officer employed by the Department of State (the “Department” or the “Agency”) since 1998. He has served at numerous foreign and domestic posts, and by 2018 had earned three Meritorious Service Awards across his 20-year career.

On May 31, 2017, grievant was assigned as Deputy Chief of Mission (“DCM”) to the U.S.Embassy REDACTED (the “post” or the “country”). Upon his arrival grievant became the Chargé d’Affaires ad interim (“CDA”) of the U.S. Embassy at post, and served in that capacity until January 27, 2018 when a new ambassador arrived. During the time grievant was CDA, he appointed his Management Officer (“MO”) as his Acting Deputy Chief of Mission (“ADCM”) upon her arrival at post in August 2017.

Between September 2017 and January 27, 2018 grievant made a series of inappropriate comments and gestures directed at the MO and an office management specialist (“OMS”), persisting even after being advised he was making others uncomfortable. On April 5, 2019, the Department proposed discipline of a seven-day suspension without pay based upon a June 6, 2018 Sexual Harassment Inquiry received from the Office of Civil Rights (“S/OCR”). After receiving grievant’s written and oral submissions in response to the discipline proposal, the Department mitigated the discipline to a five-day suspension in a letter, dated April 6, 2020, which listed nine specifications of inappropriate comments. Consistent with regulation,1 this letter was placed in grievant’s OPF where it will remain until May 2022.
[…]
Grievant does not challenge the presence of the discipline letter in his OPF. However, he argues that the FSSB is barred by its Procedural Precepts from relying solely on a discipline letter in order to low rank him; that it is required to do more than just allude to reviewing the last five years of his evaluations and must instead cite specific examples from those evaluations linked to his alleged inadequacies. He further contends that the FSSB cannot low rank based on a perceived lack of growth in specific skills, absent examples drawn from his evaluations.

Grievant dismisses the Department’s argument that he could have placed a rebuttal letter in his OPF in response to the discipline letter but failed to do so. The right to submit a rebuttal, he insists, is irrelevant to the procedural error committed by the FSSB.
[…]
This Board finds that the Procedural Precepts are clear regarding the standards for taking the serious decision to low rank an employee for good reason. Affirmations cannot replace the specific examples required by the Procedural Precepts. A void in substantiating failure to perform cannot be compensated with specific examples related to positive performance.
[…]
The Board finds that the FSSB misinterpreted the DA. Grievant arrived at post in May 2017, and the OIG investigators came in October 2017. Any adverse findings by the OIG relating to the embassy’s internal management could not logically be attributed to any failing by grievant in those few months.
[…]
The Board acknowledges the gravity of grievant’s conduct and the importance of considering the discipline letter as part of the FSSB process. However, as we recently decided in FSGB Case No. 2021-002 (June 25, 2021) at 21:

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.

By relying exclusively on the discipline letter without any substantiating examples from grievant’s evaluations for the past five years, the FSSB has committed procedural error, and has sought to penalize grievant twice for his conduct.

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A Plot To Injure Or Kill Myanmar’s Ambassador to The United Nations

December 16, 2021 By in Ambassadors, Court Cases, Diplomatic Security Tags: , , , ,

 

Via USDOJ:

Damian Williams, the United States Attorney for the Southern District of New York, announced today the guilty plea of YE HEIN ZAW, a citizen of Myanmar, for his role in a conspiracy to assault and make a violent attack upon Myanmar’s Permanent Representative to the United Nations.  ZAW pled guilty today in White Plains federal court before U.S. District Judge Philip M. Halpern.

U.S. Attorney Damian Williams said: “As he admitted in court today, Ye Hein Zaw participated in a plot to injure or kill Myanmar’s ambassador to the United Nations in a planned attack that was to take place on American soil.  Zaw now awaits sentencing for his crime.  I commend the tireless efforts of our law enforcement partners at all levels of government to ensure the safety of foreign diplomats and officials in the United States and bring the perpetrators of this plot to justice.”

According to the Information to which ZAW pled guilty, the complaint that was filed in this case, and statements made during court proceedings:

Between at least in or about July 2021 through at least on or about August 5, 2021, ZAW, a citizen of Myanmar residing in New York, conspired with others to injure or kill Myanmar’s Permanent Representative to the United Nations (the “Ambassador”).  During the conspiracy, a co-conspirator communicated with an arms dealer in Thailand (the “Arms Dealer”) who sells weapons to the Burmese military, which overthrew Myanmar’s civilian government in or about February 2021.  In the course of those conversations, the co-conspirator and the Arms Dealer agreed on a plan in which the co-conspirator would hire attackers to hurt the Ambassador in an attempt to force the Ambassador to step down from his post.  If the Ambassador did not step down, then the Arms Dealer proposed that the attackers hired by the co-conspirator would kill the Ambassador.

Shortly after agreeing on the plan, ZAW contacted the co-conspirator by cellphone and, using a money transfer app, transferred approximately $4,000 to the co-conspirator as an advance payment on the plot to attack the Ambassador.  Later, during a recorded phone conversation, ZAW and the co-conspirator discussed how the planned attackers would require an additional $1,000 to conduct the attack on the Ambassador in Westchester County, and, for an additional payment, the attackers could, in substance, kill the Ambassador.  In response, ZAW agreed, in substance, to pay the additional $1,000 and to try to obtain the additional money.

ZAW pled guilty to one count of conspiracy to assault and make a violent attack upon a foreign official, which carries a maximum sentence of five years in prison.  The maximum potential sentence in this case is prescribed by Congress and is provided here for informational purposes only, as any sentencing of the defendant will be determined by the judge.

ZAW is scheduled to be sentenced by Judge Halpern on May 10, 2022.

Read more:

Snapshot: Immigrant and Nonimmigrant Visa Ineligibilities FY2020*

December 16, 2021 By in Consular Work, Immigration, Snapshots, State Department, U.S. Missions, Visas Tags: , , , , , ,

 

Via state.gov, partial stats on IV and NIV ineligibilities by Grounds for Refusal Under the Immigration and Nationality Act) Fiscal Year 2020*
The full document is available here (PDF).

3 Listed total ineligibility findings pursuant to the 2017 E.O. on Immigration are not directly comparable to refusal counts provided in the Department of State’s Quarterly/Monthly Report of Implementation of Presidential Proclamation (P. P.) 9645. Refusal statistics in the Quarterly/Monthly Reports do not include applications subsequently issued, and are reported cumulatively from December 8, 2017, the date of full P. P. 9645 implementation, through the end of the stated reporting period, rather than by fiscal year as in the table above. Counts of monthly new subject applications provided in the Quarterly/Monthly Reports include not only applications found ineligible on P. P. 9645-grounds, as above, but also those issued pursuant to an exception or waiver or refused on non-P. P. 9645 grounds. President Biden signed PP 10141 on January 20, 2021, ending the travel restrictions under P. P. 9645.

 

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