FSGB and MSPB: Majority of the Grievance Cases Do Not Prevail

Posted: 12:21 am ET

 

Via State/OIG’s archive: Review of the Department of State Disciplinary Process:

Foreign Service and Civil Service employees have the right to file a grievance to contest the penalty in the letter from the deciding official. Initially, the Grievance Staff reviews grievances for the Department and reexamines all case materials. The Grievance Staff reviews about 130 Foreign Service and 20 Civil Service grievances of all types each year. A deputy assistant secretary for DGHR makes a determination on each grievance. That agency-level decision can be further appealed through separate Foreign Service and Civil Service processes. Under 3 Foreign Affairs Manual (FAM) 4430, “upon request of the grievant, the agency shall suspend its action” in cases involving suspension, separation, or termination during the review process. This provision applies only to the Foreign Service.
[…]

Foreign Service Appeals Process

A Foreign Service employee may appeal an agency-level decision to the Foreign Service Grievance Board (FSGB), an independent grievance appeals forum established through the Foreign Service Act of 1980. Foreign Service employees facing separation on grounds of misconduct have a right to an automatic hearing before the FSGB. Attorneys or American Foreign Service Association representatives may represent the employee. The FSGB may uphold the agency-level decision, mandate a lesser penalty, or dismiss the case entirely. In 2013, it took an average of 43 weeks for the FSGB to process a case from filing date to final decision.

Foreign Service employees may request and the FSGB may grant “interim relief” (sometimes called “prescriptive relief”) to suspend disciplinary action while an appeal is in process.

The 1995 OIG audit of the FSGB, in addressing the perception that the FSGB routinely overturns the Department’s disciplinary actions, found that “the grievance system is used by a relatively small number of employees, the majority of whom do not prevail.”10 Data from the 2008–2013 FSGB annual reports indicate that this conclusion remains valid. During this 6-year period, the FSGB adjudicated 63 appeals of disciplinary actions. The FSGB partially upheld and partially reversed the Department in 15 cases and fully reversed the Department in only 4 cases. In eight cases, the nature of the FSGB’s decision is not reported in the annual report.

Civil Service Appeals Process

Civil Service employees suspended for more than 14 calendar days or removed or reduced in grade or pay may appeal to the Merit Systems Protection Board (MSPB), an independent quasi-judicial agency established in 1979 to protect Civil Service employees. Employees covered by a collective bargaining agreement with the American Federation of Government Employees or the National Federation of Federal Employees may file a grievance under the agreement or appeal to the MSPB, but not both. The Civil Service appeals process has no mechanism for interim relief.

MSPB data concerning cases originating in the Department do not disaggregate appeals related to disciplinary matters from appeals of all types. However, relatively few Civil Service cases of all types originating in the Department reach the MSPB. In FY 2012, the MSPB received 29 appeals from Department Civil Service employees: 21 were dismissed for lack of jurisdiction or timeliness, and 4 were settled. The MSPB adjudicated only four and upheld the Department in all cases.

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Snapshot: Douglas Factors

Posted: 3:34 am ET

 

For both Civil Service and Foreign Service disciplinary cases, a proposed penalty is based on the review of similar past discipline cases and the application of the Douglas Factors.  The 12 Douglas Factors are mitigating or aggravating factors that may affect the penalty imposed:

  • The nature and seriousness of the offense, and its relation to the employee’s duties, position, and responsibilities, including whether the offense was intentional, technical, or inadvertent; was committed maliciously or for gain; or was repeated frequently.
  • The employee’s job level and type of employment, including supervisory or fiduciary role, contacts with the public, and prominence of the position.
  • The employee’s past disciplinary record.
  • The employee’s past work record, including length of service, performance on thejob, ability to get along with fellow workers, and dependability.
  • The effect of the offense upon the employee’s ability to perform at a satisfactory level and its effect upon supervisors’ confidence in the employee’s ability to perform assigned duties.
  • Consistency of the penalty with those imposed upon other employees for the same or similar offenses.
  • Consistency of the penalty with any applicable agency table of penalties.
  • The notoriety of the offense or its impact upon the reputation of the agency.
  • The clarity with which the employee was on notice of any rules that were violated in committing the offense, or had been warned about the conduct in question.
  • The potential for the employee’s rehabilitation.
  • Mitigating circumstances surrounding the offense such as unusual job tensions, personality problems, mental impairment, harassment, bad faith, or malice or provocation on the part of others involved in the matter.
  • The adequacy and effectiveness of alternative sanctions to deter such conduct in the future by the employee or others.

In Douglas v. Veterans Administration, 5 M.S.P.R. 280 (1981), the Merit Systems Protection Board established criteria that supervisors must consider in determining an appropriate penalty for misconduct. See the Office of Personnel Management Web site for a complete list (https://www.opm.gov/policy-data-oversight/employee- relations/reference-materials/douglas-factors.pdf).

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Burn Bag: A confidentiality agreement so others don’t find out how f’d up is the system?

Via Burn Bag:

“How is it that — as promotion panels go back for at least the last several EERs normally and in that period someone gets several awards, and gets specifically recommended for promotion every year by their rater and reviewer — they can be low ranked?? And then the injured party grieves and wins immediately but is required to sign a confidentiality agreement so others don’t find out how f’d up the system is … and how often this sort of thing occurs by promotion panels composed of member(s) who should recuse themselves when reviewing the files of someone they don’t like.”

via reactiongifs.com

via reactiongifs.com

 

*EER – Employee Evaluation Report
*MHAs – Meritorious Honor Award
*IRM -Information Resource Management

 

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Whoa! What happened to these Foreign Service Grievance Board (FSGB) files? (Updated)

Posted: 3:26 am ET
Updated: 2:53 pm PT (see below)

An interesting excerpt from an FSGB case:

Grievant “contends that she should not be held to a higher stand (sic) than senior Department officials and a DCM. In two of those cases, very high-ranking officials were found to have been less than candid with the Deputy Secretary of State about their relationships and not to have followed his instructions to “knock it off.””
[…]
FSGB: “However, we find it difficult to conclude that she should be held to a standard higher than that imposed on two of the Department’s most senior managers (Employees 2005-103 and 2005-104), who were both charged, unlike grievant, with lack of candor; who failed to heed direct instructions from the Deputy Secretary of State; and whose conduct led to several complaints being lodged with the Director General of the Foreign Service, as well as curtailments from the office in which they worked. Likewise, we do not agree that grievant, an FS-02, should be punished more harshly than the employee charged in FSGB Case No. 2003- 045, who was, at least during part of the conduct at issue, a Deputy Chief of Mission and thus presumably senior to grievant in the instant case, in both rank and responsibility.”

That perked our interest. So we went looking for FSGB cases 2005-103, 2005-104 and FSGB Case No.2003- 045 using the search and browse function at fsgb.gov.  And lo, and behold, all these files (Record of Proceeding) are missing from the FSGB website (the FSGB case is online, but search function failed to locate it, see explanation below).  We’ve asked the FSGB what happened to these files and why they are not online. We will update this post if/when we get a response.

The Deputy Secretary of State in 2005 is either Richard Armitage who served from March 26, 2001 to February 22, 2005 or Robert Zoellick who served from February 22, 2005 to July 7, 2006, both under President George W. Bush. The Director General of the Foreign Service at that time is W. Robert Pearson who served from October 7, 2003 – February 27, 2006.

Update 2:53 pm PT

In response to our query, FSGB said that the first two numbers we cited (Employees 2005-103 and 2005-104) are not FSGB numbers but numbers assigned by the State Department to employees who faced some sort of discipline; these discipline cases were later presented to the Foreign Service Grievance Board as comparators.  The FSGB website only includes decisions and orders from the Board. It adds:

“We try to post all our decisions and orders online. Sometimes we learn something was missed due to an administrative error, and then we post it as soon as possible when the problem is brought to our attention. We also are reviewing each year’s cases systematically to ensure there are no gaps. We welcome your bringing to our attention any gaps you identify. Please note, however, that a skipped number does not necessarily mean there is something that we are not posting; it could mean that an appeal was withdrawn very early or consolidated with another appeal and given the other appeal’s number before issuance of a decision.”

As to FSGB Case No. 2003-045, it is online and the Board provided us the link here

 

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Related item:
State-13: Foreign Service Grievance Board Records

 

 

 

@StateDept Updates Its Polygraph Policy: Are Results Shared For Security Clearance/Assignment Purposes?

Posted: 1:26 am ET

 

On September 1, 2016, the State Department updated its 12 FAM 250 policy on the use of the polygraph to examine Department employees (including employees on the General Schedule, the Foreign Service, on Personal Service Contracts, Limited NonCareer Appointees, and Locally Employed Staff).  

Per 12 FAM 251.2-2, the Office of Investigations and Counterintelligence (DS/DO/ICI) Counterterrorism Vetting Unit (CCV) administers the polygraph program and is responsible for hiring polygraph examiners, responding to requests for polygraph support, deploying polygraph examiners, and maintaining relevant records.

The update includes the following:
  • Streamlines the polygraph examination process by removing a requirement to seek pre-approval before a DS or OIG agent can ask an employee if s/he is willing to submit to a polygraph.
  • Authorizes a DS agent or Department OIG investigator to alert an employee or contractor, currently subject to a criminal, personnel security, or counterintelligence investigation, that s/he has the option to undergo an exculpatory polygraph examination, rather than limiting exculpatory polygraphs to cases where it is initiated by the individual under investigation.
  • Allow polygraphs of Department employees detailed to federal agencies (in addition to the NSA, CIA, and DIA) when the relevant agency requires a polygraph to be detailed to the position. Polygraphs of employees detailed to agencies other than the NSA, CIA, or DIA will be considered on a case-by-case basis and will require approval from the Under Secretary for Management.
  • Limits the scope of polygraph examinations of Department detailees to other federal agencies to counterintelligence topics for all detailees.
  • Formalize existing processes for polygraph examination of certain locally employed staff, in accordance with the approvals specified in the polygraph policy

Back in May 2015, we questioned the use of the CIA’s polygraph exams of State Department employees (see AFSA Elections: What’s Missing This Campaign Season? Fire, Ice and Some Spirited Debates, Please).

Do you know that Department employees who take the CIA’s polygraph examination for detail assignments will have the  results of their polygraph provided to DS and HR for security  clearance and assignment purposes?  A source told us that “In and of itself, it does no  harm if the CIA retains them for its clearance purposes, but it can  have an unanticipated negative impact when indiscriminately released  by the CIA to third parties, like DS and HR, who use them in violation of the CIA’s restrictions to the Department  and assurances to the examinees.”  If this affects only a fraction of the Foreign Service, is that an excuse not to do anything about it, or at a minimum, provide an alert to employees contemplating these detail assignments?

We’ve recently discovered a newly posted grievance case dated March 2010. We don’t know why this is currently on display upfront on fsgb.gov.  In any case, this is related to the subject of polygraph examination.

On June 24, 2009, grievant, a retired Senior Foreign Service Officer, appealed to the FS Grievance Board the State Department’s (Department) denial of his grievance with respect to the use of the results of a polygraph exam he took in 2003 in conjunction with a detail to the Central Intelligence Agency (CIA). Grievant claims the improper handling and use of the results of that exam violated the Department’s own regulations (12 FAM 250) and resulted in his having been denied a Presidential Appointment as a Chief of Mission (Ambassador).  The ROP includes some interesting interrogatories:

#1: Has the Department ever obtained a Department employee’s polygraph examination results from the CIA for a personnel security background investigation based on the employee’s SF-86 signed release? If so, please describe the circumstances under which this would occur.

The Department objected to answering this interrogatory on the grounds that is was overbroad, immaterial, and irrelevant.

IR #6e for Diplomatic Security Case Officer for the second background investigation: Have you ever requested an employee’s polygraph results from the CIA before? If so, under what circumstances‘?

The Department found this interrogatory overbroad, irrelevant, and immaterial.

Ruling on IR #6e: Under the more ample concept of relevance applied at the discovery stage, the Board finds that the information requested is sufficiently relevant to grievant’s claims or likely to lead to the discovery of information relevant to such claims to compel discovery. The information requested may help to clarify the Department’s practice in applying the regulations governing the use of polygraphs that are issue in this case. We do not find the request to impose such a burden on the Department as to outweigh the potential usefulness of the information requested. The Department is directed to respond.

IR # 7h for Diplomatic Security: Does DS routinely request and receive polygraph examination results on all Department employees who have taken polygraph examinations at the CIA as part of their routine background security investigations?

The Department objected to this interrogatory as irrelevant and immaterial in all respects.

The Department was directed to respond to grievant’s Interrogatories 6e and 7h not later than 20 days after receipt of the order but we have been unable to find the decision on this case.

 

On June 24, 2009, grievant filed a grievance appeal, claiming improper use by the Department (Department, agency) of the results of a polygraph examination he had taken in conjunction with a detail from the Department to the Central Intelligence Agency (CIA).  The grievant makes several specific claims:

1) that the CIA provided the results of the polygraph to a Diplomatic Security (DS) agent in the Department, in violation of Department regulations and CIA policy;
2) that the Department requested and/or received the polygraph results from the CIA, in violation of its own regulations;
3) that the Department improperly used the polygraph results in the course of security update investigations; and
4) that the Department improperly provided information drawn from the polygraph to the Director General (DG), which resulted in the DG withdrawing grievant’s nomination to be a chief of mission. The FSGB Board finds that it has jurisdiction over the claims presented by the grievant.

 

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Domestic Assault, Reporting Requirement Under 2 FAM 272, and a Troublesome Comma

Posted: 4:22 am ET

This is a grievance case about a domestic assault, an arrest, and a punctuation:

Grievant is a tenured FP-02 Financial Management Specialist, employed by the Department of State as a Regional Financial Management Officer at the REDACTED at the Executive Office of the REDACTED. He has been employed by the Department since 1997, serving both overseas and domestically.

On June 29, 2013, grievant was arrested in REDACTED on a charge of domestic assault against his wife. Grievant’s former wife reported this arrest to the Department; however, when grievant’s current spouse told authorities that the incident was a misunderstanding, the charges were dropped on July 22, 2013. On August 6, 2013, the Department of Diplomatic Security (DS) obtained a copy of the arrest report and began investigating grievant’s failure to report the incident.

DS issued a Report of Investigation (ROI), dated January 14, 2014 and on December 12, 2014, the Director of the Office of Employee Relations (HR/ERCSD) notified grievant of a proposal to suspend him for a period of five (5) calendar days without pay on a charge of Failure to Follow Policy, citing 12 FAM 272. Grievant submitted a written response to the proposal on February 20, 2015, claiming that he did not realize that he had to report the arrest because the regulation is not clear. In any event, he claimed, the arrest was reported by his ex-wife and the charges were dropped within weeks of the arrest. Finally, he claimed that the penalty was too harsh, in light of his confusion about the mandate. After reviewing grievant’s response, the Deciding Official concluded that grievant knowingly failed to report his arrest immediately after it occurred and that he was on notice of his obligation to report the arrest, both because of the “clarity” of the regulation and because grievant had previously made a mandatory report under this same provision in 2010. In the end, the Deciding Official did not credit the reasons offered by grievant and sustained the charge on April 3, 2015.

Grievant argues that the wording of 12 FAM 272 is “far from clear.” He contends that the Department’s construction of the regulation is unfair because it relies on either removing or ignoring punctuation that totally changes the meaning of the provision.

12 FAM 272 states in pertinent part:

b. Employees must immediately report information of a potentially . . . derogatory nature . . . concerning their . . .

(2) Adverse involvement with law enforcement agencies to include:

(a) Arrests, other than minor traffic violations, for which a fine or forfeiture of $150 or more was imposed, or
(b) Arrests for “driving under the influence” [DUI] or “driving while intoxicated [DWI].

c. Arrests must be reported in a timely fashion (i.e., within 72 hours) and must not be delayed pending the conclusion of any judicial action.

[…]
The Department argues that 12 FAM 272 b should be interpreted to require disclosures by cleared employees of any and all arrests, including two traffic offenses — DUI and DWI. The only exception to this rule of mandatory disclosure, according to the Department, is that an employee is not required to disclose “minor traffic violations for which a fine or forfeiture of $150 or more is imposed.”

The agency contends that this regulation required grievant to disclose the fact of his arrest for domestic assault because it was not for a minor traffic violation. The Department concedes that “the specifics of 12 FAM 272(b) could be more precisely worded,” and “the wording of 12 FAM 272(b) could be improved,” but insists that grievant had sufficient notice that he was  required to report his arrest. The Department lastly argues that under both sections 272 b and 272 c, grievant should have reported his arrest immediately, that is, within 72 hours of his “adverse involvement with law enforcement.”

Here is the full section of the Foreign Affairs Manual:

12 FAM 272  REPORTING ADVERSE FINANCIAL SITUATIONS AND CERTAIN ARRESTS
(CT:DS-143;   02-12-2009)

a. Employees should use good judgment and discretion in recognizing and avoiding situations and/or behavior that would call into question their judgment, reliability, and trustworthiness to safeguard information and to hold a position of trust and responsibility.

b. Employees must immediately report information of a potentially derogatory nature to the Director, Office of Personnel Security and Suitability (DS/SI/PSS) concerning their:

(1)  Wage garnishments, credit judgments, repossessions, tax liens, bankruptcies, and/or intentions to file for bankruptcy; or

(2)  Adverse involvement with law enforcement agencies to include:

(a)  Arrests, other than minor traffic violations, for which a fine or forfeiture of $150 or more was imposed; or

(b)  Arrests for “driving under the influence” or “driving while intoxicated.”

c.  Arrests must be reported in a timely fashion (i.e., within 72 hours) and must not be delayed pending the conclusion of any judicial action.

d. Employees with information they believe may have a bearing on another individual’s eligibility for access to classified information, as listed in 12 FAM 233.2, should report that information to the Director, DS/SI/PSS.

e. Reporting pursuant to this section should be in writing and directed to the Director, DS/SI/PSS, and may be either faxed to (571) 345-3191 or sent by mail to DS/SI/PSS, Attn: Director, 11th floor, SA-20.  Reports may also be emailed to DSDirectorPSS@state.gov.

f.  Cleared contractors must report information listed in paragraphs b, c, and d of this section to the Industrial Security Division (DS/IS/IND).  See 12 FAM 576.4 for additional adverse information reporting requirements.

The FSGB disagrees with the Department interpretation:

The critical language is “[a]rrests, other than minor traffic violations, for which a fine or forfeiture of $150 or more was imposed. . . .” The Department argues that this language should be interpreted as if the second comma were not there. That is, the agency would have us read the provision to require disclosure of: “(a) [All] arrests, other than minor traffic violations for which a fine or forfeiture of $150 or more was imposed. . . .” We find that while this may have been what was intended, the first rule of statutory construction is to give the words of the enactment their plain and ordinary meaning, presumably as punctuated, unless there is a clear contrary intent expressed.
[…]
We conclude that whatever the intent of the drafters, a clear delineation of what arrests are required to be reported was not captured in the language of the section 272 b(2)(a). We also conclude that both parties’ interpretations leave serious questions about which arrests were intended to be disclosed and which ones did not have to be reported.

12 FAM 270 was last updated on March 9, 2015.

Read the FSGB case below:

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Judicial Actions Involving Foreign Service Grievance Board (FSGB) Rulings in 2015

Posted: 12:15 am ET

Below are three appeals of FSGB decisions that were filed in the District Court for the District of Columbia in 2015 and a few other cases currently pending in court. All extracted from the 2015 FSGB Annual Report:

  • In May, Paul Fritch appealed the Board’s decision in FSGB Case No. 2013-005. The circumstances of that case, as with two other appeals filed by Mr. Fritch with the Board, revolved around his transfer to the Organization for Security and Cooperation in Europe (OSCE) for seven years, and reemployment by the Department of State. Mr. Fritch’s district court appeal claims that the Department, affirmed by the Board decision, denied him benefits upon his return to which he was entitled by law, including promotion opportunities, housing expenses, lost contributions to his Thrift Savings Plan account, and position seniority. A decision is pending. (Also see  How many people should be put through a wringer before, oh you know …. and  Secondments to international organizations and promotions? Here comes the boo!).
  • In November, SharLyn Foo appealed the Board’s decision in FSGB Case No.2014-018, described above under financial cases resolved last year. The Board affirmed the Department’s denial of a waiver of repayment of annuity payments in excess of $300,000 deposited into Foo’s deceased mother’s account over more than a decade. A decision is pending.
  • Also in November, La Rufus Mitchell filed an appeal of the Board’s decision in FSGB Case No. 2014-003. Ms. Mitchell claims that the Department violated the Americans with Disabilities Act and the Rehabilitation Act when it separated her for not having passed the timed running test required for Diplomatic Security Agents. The Board had upheld the Department’s decision. (See the case description under Separation cases, above, for greater detail.) A decision is pending.
  • Appeal to the Foreign Service Labor Relations Board (FSRLB) | In October, the Department of State filed an appeal to the FSRLB of the Board’s decision in the implementation dispute filed by AFSA in FSGB Case No. 2014-028. The FSGB found that the Department had violated negotiated Procedural Precepts when it failed to pay Meritorious Service Increases (MSIs) to members of the Foreign Service in 2013. The Department has alleged that the Board relied on erroneous facts and factual premises not in evidence, and disregarded the express terms of the collective bargaining agreement when it based its decision on past practice. (See Implementation Disputes, above, for greater detail.) Also see Burn Bag: @StateDept announces its disappointment … 👀 OMG! It’s nice to feel valued!

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FSGB 2015 Annual Report: Grievance Processing Reduction — From 41 Weeks to 34 Weeks

Posted: 12:08 am ET

 

The Foreign Service Grievance Board has released its 2015 annual report. Excerpts below:

The FSGB, as the primary appeals tribunal for Foreign Service Officers, is in many cases the tribunal of last resort for a wide variety of disputes that arise in the context of employment in the Foreign Service. Although the Board’s decisions may be appealed to the Federal District Courts, such appeals are rare. Therefore, the Board holds sway over decisions that may not only adversely affect Foreign Service careers but that may be fatal to such careers.In its 2015 report, the FSGB says that it has “achieved significant progress in reducing the timelines from the inception of the appeal (or the filing of the grievance with the Board) to the issuance of the final decision. Taking into consideration certain anomalies (cases settled, withdrawn, etc.), the grievance processing time was reduced from an average of 41 weeks in 2014 to 34 weeks in 2015.”
[…]
The Board is constantly mindful that external trends and societal changes that affect the Foreign Service have a bearing on dispute resolution. In that regard, we have encouraged internal discussion and on occasion invited outside experts to make presentations on topics that we consider relevant to the Board’s core functions. For example, this past year the Board held a panel discussion on the impact of social media on diplomacy, including such issues as expectations of privacy and security of communications in a much more active cyber environment. We also invited four distinguished individuals to engage the Board in a wide-ranging discussion on disability and its impact on the Foreign Service. The discussion ranged from a report on what the Department of State is doing to provide accommodations for various employees who are disabled to the diagnosis and treatment of PTSD. These issues, along with a myriad of other conditions caused by service in stressful, dangerous and unhealthy posts abroad, have significant impact on behavior and performance and are often addressed by evolving laws and regulations; they are therefore relevant to the overall mission of the Board. My expectation is that the Board will continue to encourage discussion of issues that influence Foreign Service careers, and that will enlarge the Board’s understanding of the growing complexities in the practice of diplomacy and the legal framework that surrounds it.

Some of the notable 2015 FSGB cases:

  • One complex case arose from the circumstances following the September 11, 2012, attack on an American diplomatic post in Benghazi. The reviewing officer of a senior DS Agent was placed on administrative leave during the last four months of the rating period. No communication was allowed between the rated employee and reviewer during that time. Additionally, the rated employee was subsequently responsible for implementing many changes in procedures that had been in place under the reviewer who was placed on leave. The employee assumed that the person acting in the original reviewer’s stead would provide the reviewing statement for his EER. However, the Department determined that his former reviewer would write the reviewing statement, since that officer had not been formally reassigned and was familiar with grievant’s performance during most of the rating period. Grievant claimed that this decision, along with the Department’s decision to assign no reviewer for his subsequent Interim EER, contrary to grievant’s expectations, disadvantaged him in the highly competitive promotion process at the senior levels. The Board found that although the Department had contravened the regulations regarding reviewing officers, grievant, who had been recommended for performance pay, had not demonstrated actionable harm, and the grievance was denied. FSGB Case No. 2015-022. (This case does not appear to be available at fsgb.gov).
  • A second grievance illustrated an issue involving informal counseling that occurs with some frequency in cases that end up at the Board. Grievant, an untenured officer, challenged several EERs and a low ranking on a number of grounds, among them that he had not previously been counseled on deficiencies identified in his EERs. After a thorough review of the record, including contradictory statements by the employee and raters, the Board found that, with one exception, grievant had been counseled, albeit informally, but not in writing on the official counseling form as provided by Department regulations. In accordance with Board precedent, the Board found that such informal counseling was acceptable, although not the best practice. FSGB Case No. 2013-046. (PDF)
  • The appeal with the largest sum at stake was filed by the daughter of a deceased Foreign Service Officer. The Department sought to collect over $300,000 in annuity payments that it had continued to deposit to the account of the deceased’s wife (the grievant’s mother) for over a decade after the mother’s death. The grievant alleged that her mother had told her that the payments would be continued, and that she should use them for the benefit of her minor nephew, whose father had also died. When the Department requested repayment, grievant asked for a waiver. The Department denied the application for waiver on the basis that it (the agency) was prohibited by regulation from waiving repayment of overpayments made to an estate. The Board affirmed the Department’s findings. The grievant has appealed the decision to district court. (See Judicial Actions Involving Board Rulings, below.) FSGB Case No. 2014-018. (PDF)
  • In a second, unusual, case, the grievant was a Department employee who had filed the first Foreign Service grievance in 1972. At that time, he was due to be separated as a result of expiration of time in class, and would have received no retirement benefits. The grievant protested that the separation was really due to policy differences with his superiors. During the proceedings, grievant was separated and hired into a Civil Service position. He ultimately won the grievance, but was never reinstated in accordance with the remedies granted. Grievant requested that the Board negotiate a revised annuity based on the original grievance decision. The Board found that the passage of over four decades since the original grievance made the new grievance untimely, and it dismissed the case. FSGB Case No. 2014-042. (Also see FSGB Recognizes Grievant’s “Enduring Dissatisfaction” With @StateDept’s 40 Year Old Grievance Case — Where’s the Medal?)
  • A third case involved both a two-and-a-half-year delay in proposing discipline and post-traumatic stress disorder (PTSD), an issue that has arisen with increasing frequency in grievances. The grievant was a DS Agent who allegedly suffered from PTSD following an earlier military deployment to Iraq. The Department charged that grievant failed to inform it about the PTSD during the hiring process, and that he was taking prescription medication without notifying DS as required by the Foreign Affairs Manual (FAM). The Board sustained both charges but did not sustain two of the specifications under one of the charges, and remanded to the Department to reconsider the penalty. The delay was not found to have harmed or prejudiced the grievant in this case. FSGB Case No. 2014-020 (PDF).
  • One case involving the appeal of an assignment was closed this year. Grievant had been an FS-02 officer for several years when he was voluntarily separated and transferred to an international organization. He remained at the international organization for seven years, where he held a senior position in his final years. Grievant contested his assignment to an FS-02 position when he returned to State. However, he had also filed a whistleblower reprisal complaint with the Office of Special Counsel (OSC) involving the same issues. Grievant withdrew his grievance appeal in order to pursue the OSC complaint. FSGB Case No. 2014-025. (Also see  How many people should be put through a wringer before, oh you know …. and  Secondments to international organizations and promotions? Here comes the boo!).

Some unresolved cases at the end of 2015:

  • Grievant, an untenured DS Agent who spoke fluent Chinese, applied for an upgraded security clearance pursuant to a pending assignment to China. In mid-2013 he was informed that his Top Secret clearance was being suspended based on issues surrounding his personal conduct and his foreign preference and influence. The Department also suspended his law enforcement duties and LEAP, assigning the Agent to unclassified duties. Although the Agent was recommended for tenure the same year, tenure was withheld pending resolution of the security issues, and he was low ranked. Grievant challenges these actions on procedural grounds. FSGB Case No. 2015-034.
  • USAID sought to suspend a Management Officer assigned to a conflict zone for negligent contracting actions that it alleged led to the costly collapse of a roof on a new USAID building. The collapse took place in 2009; discipline was proposed in early 2013. As of mid-2015, the agency had not yet issued a final decision on the discipline; however, it was withholding the grievant’s promotion, recommended in 2013, pending that decision. The grievant challenged the agency’s action as untimely and also claimed as a defense that his alleged negligence was due to his PTSD. The case appeared to be near an agreed resolution last year when a second investigation of the grievant halted negotiations between the parties. FSGB Case No. 2015-020.
  • An employee posted to South America with USAID stopped on his way home by a local bar/grocery store, where, he alleges, his drink was drugged by a young woman who joined him. He claims that he awoke the next morning in a strange place, feeling ill and disoriented, and found that $5,000 had been charged to his debit card. The grievant and his wife state that he continued to hallucinate and be paranoid for two days, supporting their conclusion that he had been drugged. He reported the incident to the RSO and was later recommended for separation for cause based on two charges: 1) Conduct Unbecoming, for having had commercial sex in violation of Department policy; and 2) Dishonesty, for having reported his credit cards stolen, when he still had them in his possession. FSGB Case No. 2015-048.  (This case does not appear to be available at fsgb.gov but a similar case is

    FSGB No. 2012-019 (PDF) which also involves a drugged IMO employee).

IMPLEMENTATION DISPUTES

During the past year the Board resolved two implementation disputes filed by AFSA.

  • The first involved the meaning of language in the 2013 Precepts governing the award of Meritorious Service Increases (MSIs). AFSA and the Department had for many years negotiated the Procedural Precepts concerning MSIs. The Precepts had historically called for awarding MSIs to all employees recommended by the Selection Boards, up to a set percentage of employees in each competitive class. Due to the sequester of funds government-wide in 2013, the negotiated language permitted withholding payment of the MSIs. When the sequester was lifted, the Department nevertheless continued to withhold payment of the awards. AFSA argued that refusal to pay at that point violated the terms of the Precepts to which they had agreed. The Board found in AFSA’s favor, based on the parties’ past practice. The Department has appealed this decision to the Foreign Service Labor Relations Board, which has not yet ruled. FSGB Case No. 2014-028. (PDF)
  • In the second implementation dispute, AFSA alleged that the Department had failed to hold negotiations and/or reach agreement with it on an Embassy London change in practice relating to the deductions Embassy London employees could make from the salaries of their own domestic employees when those employees were given room and board in embassy-provided housing. AFSA contended that the embassy’s unilateral change violated the FAM and the parties’ 1987 Framework Agreement. The Board found that the appeal was filed late and dismissed it for lack of timeliness. FSGB Case No. 2015-005. (PDF).

Read the full report below or read it online via fsgb.gov:

 

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Burn Bag: Foreign Service Promotion Eligibility Self-Certification and Potential Grievance

Via Burn Bag:

“ALDAC 16 State 27420 sent Mar 15, 2016 on Foreign Service Promotion Eligibility Self-Certification.  Recommend that employees pass on this.  If you complete the process and later discover an error, HR/G will use your electronic OK to deny your grievance.  The cable does not mention AFSA.”

via Doctor Who Tumblr

via Doctor Who Tumblr

Note that the anonymous “Burn Bag” submissions are not verified information. The submissions are provided “as-is” for informational purposes only. Submissions are edited for length as needed. While we typically do not/are not able to follow-up entries, we occasionally attempt to look into the subject of a submission, as we will in this case.  We hope to post something in a bit, email us if you want to share your thoughts.

 

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Secretary of State’s Security Detail Who Asserted He Was Drugged, Robbed, and Kidnapped Gets 14 Day Suspension

Posted: 2:31 am EDT

 

This case is about a member of the security detail of then Secretary of State Hillary Clinton who asserted that he was drugged, kidnapped and robbed during a trip overseas in June 2012. The State Department says that “the grievant consumed nine alcoholic beverages the night before the meeting and the flight, left his hotel alone at 2:30 a.m. the morning of the meeting and flight, and remembers nothing after that until he allegedly awoke at 10:15 a.m. in a car with three strangers in a wooded area 25 km. from his hotel.”  

Public records indicate that the then secretary of state was on foreign travel to Oslo and Tromso, Norway from June 1-2, 2012.

The following is excerpted from the Record of Proceeding from FSGB No. 2014-043:

Grievant joined the Department in 2011. The instant grievance arises from events on the evening of June 1 and morning of June 2, 2012, in and around (REDACTED), while grievant was assigned to temporary duty (TDY) as a member of then-Secretary of State Hillary Clinton’s Security Detail (SD) during the Secretary’s official visits to (REDACTED) and (REDACTED).
[…]
Grievant, an untenured Special Agent in the Bureau of Diplomatic Security, grieved the Department’s Decision to suspend him for 14 days without pay and place a discipline letter in his Official Personnel Folder for Failure to Report for Duty. The Department charged him with failure to report for a morning meeting and missing a flight from REDACTED to REDACTED on June 2, 2012, while a member of Secretary Clinton’s Security Detail. As aggravating factors, the Department cited the fact that grievant consumed nine alcoholic beverages the night before the meeting and the flight, left his hotel alone at 2:30 a.m. the morning of the meeting and flight, and remembers nothing after that until he allegedly awoke at 10:15 a.m. in a car with three strangers in a wooded area 25 km. from his hotel. Grievant was removed from the Security Detail and sent home from REDACTED, with other members of the Detail picking up his assignments in REDACTED. Grievant asserted the affirmative defense that he was drugged, kidnapped, and robbed, making it impossible for him to report for scheduled duty. He further complained that the Department’s investigation of the incident was biased and procedurally flawed, that he has been improperly harmed by the Report of Investigation, that the Department mischarged him, that his “off-duty” conduct should not constitute an aggravating factor, and that the penalty was unreasonably harsh and inconsistent with penalties meted out for similar or lesser offenses in recent years.
[…]
Grievant states that at approximately 10:15 a.m. on June 2, he awoke in the rear passenger seat of a car parked in a wooded area with three other sleeping men whom he could not identify but who looked “vaguely familiar.” He exited without waking the others and followed a path to a road. At approximately 11:00 a.m., grievant contacted an SD team member and was instructed to flag down a public bus and proceed to the nearest railway station. After being picked up by the ASAIC, the Assistant Regional Security Officer, and a local national, grievant stated that he felt very groggy, “more than just hung over.” They took him to a local medical center for evaluation, and then to a police station, where grievant filed a report of the incident, noting that $80 and a credit card were missing from his wallet (though other credit cards and grievant’s BlackBerry were still in his possession).

As the circumstances of grievant’s disappearance were unclear, and his report of feeling groggy raised questions about his neurocognitive condition, the Department removed him from the SD and ordered him to return to the U.S. Blood and urine tests from the medical center came back negative for the substances screened (so-called “date-rape drugs” Oxazepam, Benzodiazepine, and Creatine), and the (REDACTED) police ultimately dismissed grievant’s complaint that he had been robbed “by unknown perpetrator” for lack of evidence.  (Note: Grievant argues in the FSGB case that “although tests at the medical center detected no drugs in his system, the tests did not screen for common “date rape” drugs GHB, Ketamine, and Rohypnol and thus do not disprove that he was drugged.)”
[…]
On the other hand, the Department asserts that grievant has produced no evidence in support of his affirmative defense (i.e., that he was “likely” the victim of a crime that prevented him from reporting for duty). There is no witness testimony establishing that he was kidnapped, drugged, and robbed. The tests performed at the medical center produced no evidence that grievant was drugged, and grievant’s complaint that the screening was not comprehensive for all common “date rape” drugs, even if true, in no way establishes that he was in fact drugged (italics added).

Wait, but if he was tested for all common date drugs, and it shows, wouldn’t that have provided some evidence that something happened to him beyond just the alcoholic drinks?

The Foreign Service Grievance Board says that “consistent with its obligation to promote the efficiency of the Service, the Department must have latitude to determine how best to conduct an investigation and frame an ROI. We are not persuaded by the evidence or arguments submitted by grievant that the Department abused its discretion or violated applicable law or regulation in carrying out its investigation of grievant’s failure to report for duty or in formulating its conclusions in the ROI.”

It held that “the Department has met its burden of proving that the charged misconduct (Failure to Report for Duty) occurred, that a nexus exists between grievant’s misconduct and the efficiency of the Service, and that the proposed punishment is proportionate to the offense. Grievant has failed to meet his burden of proof with respect to the affirmative defense he asserted” and denied the  grievance appeal by the special agent.

Read in full here:

If the document embed does not display in full, the FSGB file is accessible here as PDF.

 

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