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FSGB: Requests For Discovery Fail For Imposition of “Undue Burden on the Department”


Via FSGB Case No. 2021-015/November 22, 2021-Order Motion to Compel
Grievant is an untenured FP‐04 consular coned officer. She has been reviewed for tenure by two Commissioning and Tenure Boards (“CTB”), the second of which recommended her for tenure; that recommendation was suspended while the Department investigated the events giving rise to this grievance.
Her grievance concerns a disciplinary proposal arising from events that took place when she was performing passport and citizenship services at a post abroad in July 2017. The Department has proposed a 4‐day suspension for charges of Misuse of Position, with three specifications, resulting from her action in sending, or attempting to send, a photo of a naked baby contained in a Consular Report of Birth Abroad (“CRBA”) file to her mother and sister, and two specifications of Poor Judgment; one for orally discussing said baby’s genitals with consular staff and a second for asking parents of CRBA applicants for photographs of her with their babies
Grievant admits the facts underlying the proposed discipline, although she alleges that she was harmed by bias and lack of counseling on the part of her supervisor and has expressed remorse for the poor judgment displayed in these instances.
However, she alleges that the penalties are disproportionate and unfairly harsh because they will effectively end her career. She argues that, unlike the individuals in the comparator cases, she is an untenured officer, and that having a suspension letter in her performance file for two years, three years into her limited career appointment, eliminates any chance of a renewed recommendation for tenure despite otherwise exemplary performance and the strong recommendations of her raters and reviewers. She further contends that because she is on a five year Limited Career Appointment as an untenured officer, undue delay in the investigation and disciplinary process, in particular a two-year gap between the completion of the investigation of the complaint by Diplomatic Security and the proposal for discipline, has harmed her by precluding any future board from considering her file absent the suspension letter.
Grievant filed a Motion to Compel on August 16, 2021, seeking full Department response to two requests for production of documents.
Additional details from ROP:

We set out below the two requests in dispute together with the respective positions of the parties.

a. Discovery Request 3: Without revealing any information protected by the Privacy Act, please provide the following information:

a. In the last ten years, how many untenured career candidates have been proposed for any action between an admonishment and a five day suspension?

b. Of those employees, how many actions were sustained as admonishments, how many as reprimands, and how many as suspensions?

c. Of those that received reprimands and suspensions, how many were deferred and/or denied tenure at least once?

d. Of those that received reprimands or suspensions, how many were actually recommended for tenure with the decision letter in their files?

e. Of those that received reprimands and suspensions, how many failed to achieve tenure?

b. Discovery Request 4: Without revealing any information protected by the Privacy Act, please provide redacted copies of Department proposal letters, decision letters and Douglas factor checklists for those cases of untenured career candidates proposed for disciplinary action up to and including five days’ suspension, within the last ten years referred to in request 3 above.

This Board has in the past denied requests for discovery that require extensive research and analysis of the files of unrelated individuals in pursuit of a statistical or other correlation.

See FSGB Case No. 2014-026 (Order dated April 26, 2015). Grievant’s argument that the Department, because it reports denial of tenure and disciplinary statistics separately to AFSA, must also keep records of the relationship between disciplinary proposals and tenure, both
statistically and with respect to each individual affected, or alternatively that the information she requests should be readily available, is largely speculative and unsupported by preponderant evidence. We therefore find that, taken together, the resources required to respond to these two requests outweigh the likely materiality of the information produced. Grievant’s Motion to Compel is denied.



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