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 Grievant asked that the low ranking be rescinded and he be mid-ranked.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.
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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