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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This Kind of Language Can Get One Suspended Without Pay in the Foreign Service

Posted: 1:25 am EDT

 

In FSGB Nos. 2014-041, the grievant, an FS-02 Foreign Service Officer with the Department of State, appealed the agency-level grievance decision upholding her three-day suspension without pay for improper personal conduct and poor judgment.  While the FSGB reduced the penalty to a Letter of Reprimand, the FSO had to grieved the case before the reduction of penalty:

While grievant was serving as Public Affairs Officer (PAO) at a U.S. Embassy, the Assistant Public Affairs Officer (APAO) filed an Equal Employment Opportunity (EEO) complaint alleging that grievant made numerous inappropriate and insensitive comments (many of which she overheard) – including several references to the national origin of some local and American employees; that she used harsh and profane language that made others uncomfortable in the workplace; and that she exhibited behavior that lacked professionalism, cultural sensitivity and good judgment. The EEO complaint triggered an Office of Civil Rights (S/OCR) investigation during which about a dozen local and American employees of the embassy were interviewed and signed affidavits. The S/OCR report was forwarded to the Office of Human Resources (HR/ER). The Department proposed to suspend grievant for five days without pay based on charges of improper personal conduct (seven specifications) and poor judgment (four specifications). The Deciding Official did not sustain three of the four poor judgment specifications and mitigated the penalty to three days. Grievant filed an agency-level appeal, which was denied.

Here are the things the FSO said which made the Department charged the employee with improper personal conduct and poor judgment:

Specification 1 – Grievant asked the APAO: “What’s the name of the Chinese guy who came to borrow a recorder, who speaks bad English?”

Specification 2 – After a telephone conference with State Department staff in Washington, grievant said to the APAO: “What the hell is that woman doing in that position! She’s not even a real American!” On the following day, grievant allegedly said again: “but this woman is not a real American!”

Specification 3 – In describing to the APAO an event at a previous post involving a naturalized U.S. citizen, grievant stated: “. . . she has a U.S. passport, but she is not a true American. She was Asian. In fact, I think she was Vietnamese.”

Specification 4 – The APAO overheard grievant say – in responding to a question from an  REDACTED employee of the Embassy about the children born to immigrants to the U.S.: “[T]hose immigrants are coming to the U.S. and having babies. Even though they grow up in the States, they are not culturally American.” Her comment in the workplace where she could be overheard was inappropriate.

Specification 5 – In the presence of an American colleague, the APAO, and other local embassy employees grievant shouted into her cell phone, “You f—ing c–t! You already ate?! You didn’t wait for me!” Her use of profanity was inappropriate.

Specification 6 – An American colleague stated that at a social event hosted by a senior Embassy official he had asked what the hostess meant in saying that as a college student she had been a “little sister” in a fraternity. Grievant explained to him – in earshot of several expatriates — that “it means you don’t have a gag reflex.” The American colleague interpreted this to mean that the “little sister” was obliged to perform oral sex on members of the fraternity. In this situation grievant’s comment was inappropriate.

Specification 7 – An English Language Fellow (ELF) reported that in a conversation with the ELF in an embassy vehicle driven by an  REDACTED employee of the embassy, grievant referred to REDACTED as “stupid” and “slow.”

The FSGB in this case finds that “the Department has not proved seven of eight specifications, included in two charges that were the bases for its decision to suspend Grievant for three days. With respect to the penalty, the Board finds that it has inappropriately applied the charge of Discriminatory Harassment as an aggravating factor with respect to the sole specification that has been sustained. The Department is directed to reduce the penalty to no more than a Letter of Reprimand, and to advise the Board of its actions within 30 days of receipt of this Decision.”

Read in full here (PDF) or read below:

 

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False 360 Feedback Input in a Denial of Tenure Case Makes It to the Grievance Board

Posted: 3:32 am EDT

 

We’ve written previously about the 360 degree feedback tool as practiced by the State Department, most recently last fall when a Speaking Out piece was published in the Foreign Service Journal urging that the Department reevaluate its use of the 360-degree reviews (see The State Dept’s 360 Degree Feedback as Placement Tool, and Probably, a Lawsuit Waiting to Happen).

In a recent Foreign Service Grievance Board (FSGB) case, an FS-2 officer who works for USAID, appealed the denial of his grievance in which he challenged the denial of tenure by the 2014 Tenure Board, on the grounds that a principal document on which it based its decision was fatally flawed. And it includes an example of the 360 feedback gone wild.

The 2013 Tenure Board had deferred grievant for tenure consideration for one year. Grievant alleges that the recommendation for deferral was based mainly on anonymous, negative 360 degree input that was the polar opposite of grievant’s accumulated Appraisal Evaluation Forms (AEFs) and other, positive 360 degree information. When the 2014 Tenure Board rejected grievant for tenure, the Agency decided to terminate him. The centerpiece of his grievance and appeal is the 2014 Tenure Board’s alleged improper reliance upon a single, stale and flawed 2013 TEF. Furthermore, grievant complains that the Agency denied him substantive due process because it failed to provide him with reasonably specific and timely notice of his deficiencies and an opportunity to improve his job performance before the denial of tenure.

Grievant joined the Foreign Service in May 2009 as an FS-2 officer, as part of the USAID’s recruitment program to attract mid-career professionals under the Development Leadership Initiative (“DLI”).

The AEFs Before the Tenure Board.  The package of information considered by the 2013 Tenure Board included a collection of three AEFs, covering grievant’s performance from April 1, 2009 through March 31, 2010 , from April 1, 2010 through March 31, 2011 , and from April 1, 2011 through March 30, 2012. All three were uniformly positive, and they did not include any complaints that grievant was not performing adequately in any skill areas or that he was deficient in any work objective.
[…]
The 2013 TEF. This document is found in the record as Attachment J to grievant’s Appeal Submission. The author of this January 3, 2013 TEF (hereinafter REDACTED) was the Director of the agency’s REDACTED Office in USAID/Washington. He described himself as “the employee’s Office Director for five months,” indicating that he was evaluating grievant’s performance for the period of July 2, 2012 to December 19, 2012. He stated specifically that he “relied heavily on the 360 degree input provided by senior tenured officers who observed the employee’s performance in his two overseas assignments and his short stay in AID/W.” His reference to “360 degree input” denotes a certain type of information that a rater is permitted to obtain in preparation of an AEF. The use of 360 degree sources is also permissible in the preparation of a TEF.*3

In the Precepts for the Employee Evaluation Program (ADS Chapter 461) , “360 degree sources” are defined as: “Customers, peers, other managers, subordinates, and other individuals with whom or for whom an employee may have worked who can provide feedback, from their various perspectives, about the employee’s performance during any period of performance currently being evaluated.” The Precepts contain instructions for how a rater and rated employee must collaborate to select the particular 360 degree sources, some of whom are required to be solicited even if they do not respond.

According to the Record of Proceeding, at that time that the supervisor wrote the TEF, the Precepts did not explicitly direct or authorize the inclusion of 360 degree information in a TEF, although such authorization had become explicit by the time the 2014 Tenure Board made its decision. See ADS Chapter 414mad, 3.3.3 (“Responsible officials should use all appropriate sources of information in preparing the TEF, including AEFs, Appraisal Input Forms (AIFs), and 360 feedback.”).

The grievant argued that he was harmed by the underlying falsity of some of that information – compounding the impropriety. Grievant stated that some of the negative 360 comments were “literally false information that during the tenure process no one questioned or compared to the accurate facts as reflected in grievant’s OPF.”

Grievant identifies two examples of prejudicially false information that came to light:

One, grievant learned that one of the originally unnamed 360 degree sources was REDACTED who was a Civil Service supervisor of a technical office in the REDACTED in Washington, D.C. The underlying 360 degree source material that sent to was a memorandum of December 11, 2012. In it, he opined that grievant did not have the ability to function at the FS-01 level.  REDACTED added, “The fact that he has been curtailed in his first two overseas assignments in REDACTED and REDACTED by the Agency reinforces [sic] my recommendation.”9 The unchallenged information in the Record of Proceedings in this appeal shows that grievant left REDACTED  because he volunteered for a CPC (Critical Priority Country) assignment in REDACTED. Then, he left the subsequent assignment REDACTED at the end of one year, because one year was the standard length of time for a CPC assignment. Neither departure from post was involuntary or punitive in any way.

Two, another important false statement about grievant came from a 360 degree source later identified as REDACTED.  In an email of December 10, 2012 to he described himself as grievant’s “mentor” in REDACTED . In part, REDACTED stated,

He [grievant] taxed my experience and skills to the max until I finally requested that he be transferred out of our Mission. To cut to the quick, I would not recommend him for Tenuring [sic], I would rate him as negative on all of the FS Precepts for tenuring and I believe that the Agency would be better served employing [grievant] as a PSC. I did not write his AEF but I did have input and discussed his negative performance with his supervisor . . . . He refused to do rotations stating that he knew all about the Agency, our rules and regulations and how other tech and support offices functioned. . . . I had him removed.10

Grievant identifies several false statements about him in this TEF. One, grievant’s AEFs all confirmed that he completed whatever training rotations had been prescribed for him. […]  Moreover, comments reveal a fundamental misunderstanding of grievant’s status as a “mid-level” career candidate, who after the initial few weeks of orientation, was not subject to the types of rotations that applied to “entry-level” candidates. As mid-level, he was assumed to be knowledgeable in his field and was evaluated as a regular employee, not as a trainee – one who, according to his AEF’s, fully met those expectations.

Golly! You folks at USAID know this is wild, right?

Here is the decision of the FSGB: HELD: The denial of tenure by the 2014 Tenure Board was tainted by the flawed and falsely prejudicial 2013 Tenure Evaluation Form (TEF) and was also issued in violation of several Agency Precepts. The denial of tenure is reversed and the case remanded to the Agency with instructions to expunge the 2013 TEF, as well as the letters deferring and denying tenure, and to place grievant’s updated Official Personnel File (OPF) before the next Tenure Board.

Read the ROI of the case below:

 

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Meet the 17 Members of the Foreign Service Grievance Board (as of October 1, 2015)

Posted: 12:10 am EDT

 

Via FSGB:

Prior to 1971, employee grievances in the foreign affairs agencies were handled informally within the agencies.  The first formal grievance system covering Foreign Service members of the three principal foreign affairs agencies — the Department of State, the Agency for International Development, and the United States Information Agency — was established under Executive Order 11636 of December 24, 1971.

On March 26, 1976 Congress amended the Foreign Service Act of 1946 to establish a permanent grievance system.  Although it retained many of the procedures of the earlier, interim system, the statutory system carried additional functions and authority.  In particular, the new Board could order the suspension of agency actions pending the Board’s decision in cases involving the separation or disciplining of an employee if it considered such action warranted.  Further, the Board’s recommendations to an agency head could be rejected only if they “would be contrary to law, would adversely affect the foreign policy or security of the United States, or would substantially impair the efficiency of the service.”

The grievance system underwent further change pursuant to the Foreign Service Act of 1980 and implementing regulations which went into effect on June 11, 1984.  The Foreign Commercial Service of the Department of Commerce and the Foreign Agricultural Service of the Department of Agriculture were added to the agencies already covered.

Through the years the makeup of the Board has changed from the initial nine members to a membership of nineteen.  Board members are appointed by the Secretary of State and the innovative mix of an almost equal number of professional arbitrators and of other members having Foreign Service experience has remained constant.

Per 3 FAM 4440 (PDF), the Chairperson and other members of the Board shall be appointed by the Secretary of State from nominees approved in writing by the agencies to which this regulation applies and the exclusive representative (if any) for each such agency.  Each member of the Board shall be appointed for a term of two years, subject to renewal with the same written approvals required for initial appointment.

Members of the Foreign Service Grievance Board — 17, as of October 1, 2015:

#1.  Bernadette M. Allen |  Bernadette M. Allen completed her 30-year Foreign Service career in the United States diplomatic corps in May 2010. She served as the United States Ambassador to the Republic of Niger from March 2006 through January 2010. Other overseas postings included Burundi, The People’s Republic of China, The Republic of the Philippines and Canada, as well as temporary duty assignments in Haiti and Japan. Her service years in Washington, DC included desk officer to management level positions in the Bureau of African Affairs, the Bureau of Consular Affairs, the Bureau of Legislative Affairs and the National Foreign Affairs Training Center (see more PDF)

#2.  Barbara C. Cummings | Barbara Cummings earned a B.A. degree in history from Brandeis University in 1978, and a J.D. degree from the George Washington University in 1981. She is a member of the District of Columbia Bar Association. In 1982, she joined the Department of State as a Foreign Service officer and spent her first assignment in Athens, Greece as a vice-consul. After Greece, Barbara was assigned to Jamaica, the United Kingdom, Albania, Canada, Peru and Italy. In 1991, Barbara became the first U.S. Consul to serve in Albania following a 48-year break in diplomatic relations between the U.S. and formerly communist and isolationist Albania. She also had three tours in Washington, D.C. In 1998, she graduated from the National Defense University in Washington, D.C. with a M.S. degree in national security strategy. Her final overseas assignment was as Minister Counselor for Consular Affairs and Consul General in Rome, Italy. She served as Diplomat in Residence for the Washington, D.C., Maryland, Delaware, West Virginia and Northern Virginia region based at Howard University from 2008 until her retirement from the Department in 2010. (see more PDF)

#3.  William J. Hudson | William J. Hudson joined the Foreign Service in 1972 after completing a BA and MA at UCLA and serving two years in the US Army. His assignments have included tours in Africa, the Middle East, and Europe. In the Department he served in HR, as Executive Director for the Bureau of African Affairs and later as Executive Director of the Middle Eastern and South Asian Bureaus. In the latter position he had key responsibility for reestablishing a US Embassy in Kabul, Afghanistan. Mr. Hudson served as US Ambassador to Tunisia from 2003 to 2006. He retired in 2006. Since retirement he has worked for the Department of State in several contract positions, including as A/DAS in the Near Eastern Bureau. (PDF)

#4. Gregory D. Loose | Greg Loose has been a member of the Foreign Service Grievance Board since 2013. He is a retired Foreign Service Officer who was with the U.S. & Foreign Commercial Service for twenty-two years. He held the rank of Minister-Counselor and his overseas postings included Tokyo, Taipei, Ho Chi Minh City, and London. He also served in Washington, D.C. as Regional Director with executive responsibility for U.S. Department of Commerce personnel and operations in Africa, the Middle East, and South Asia. Before joining the U.S. Government, Greg held positions in the banking industry in Los Angeles and Tokyo. (PDF)

#5. J. Robert Manzanares | Mr. Manzanares is a retired career State Department senior Foreign Service officer with the rank of Minister- Counselor. Mr. Manzanares served as Deputy Assistant Secretary in the Bureau of Human Resources from August 2009 through June 2012 where he supervised Performance Evaluations, Employee Relations, Recruitment, Assessment and Employment as well as the Executive Office for the Bureau of Human Resources. Prior to this, he served as the State Department’s Diplomat in Residence located at the University of New Mexico campus in Albuquerque, New Mexico. Mr. Manzanares was also responsible for outreach to the University of Texas at El Paso, and Universities in Colorado and Wyoming.  Mr. Manzanares served as the Acting Permanent and Deputy Permanent Representative of the United States to the Organization of American States. While in these positions Mr. Manzanares held Ambassadorial rank. From 2003 to mid 2006, he was Deputy Chief of Mission and Charge d’Affaires at the U.S. Embassy in Spain. From 2000 to 2003 he was Executive Director to the Executive Secretariat of the Office of Secretary of State under Secretary Powell. He was Executive Director for the Bureau of African Affairs from 1998 to 2000. Previous postings include Abidjan, Ivory Coast; Mexico City, Mexico; Reykjavik, Iceland where he served as Management Officer; and Tel Aviv, Israel, where he was Acting Deputy Chief of Mission and Management Counselor. (PDF)

#6William B. Nance | William Nance has many years of international development experience with USAID, and in the private and non-governmental sectors. He retired from the U.S. Government as a Senior Foreign Service officer at USAID where he served in Washington and in several overseas posts, including his last posting as USAID Representative to Mongolia. Mr. Nance also worked for the Institute of International Education, a non-profit organization, where he was responsible for directing a staff of more than 50 people (40 in Cairo, a dozen in the U.S.) that designed and managed training programs on behalf of USAID/Cairo for some 40,000 Egyptians, over a five-year period. At that same time he managed (from Washington, DC) small local staff offices in Pretoria, Windhoek, and Washington, responsible for designing and arranging training programs for students and professionals from countries in South Africa, Namibia, Indonesia, the Philippines, India, and Panama. (PDF)

#7. Harlan F. Rosacker  | Harlan Rosacker retired from the U.S. Information Agency after serving for eight years as the Director, Office of Personnel. He was a member of the Foreign Service Grievance Board from 2003 until 2008 and was reappointed in 2011. He was appointed to the Foreign Service in 1966 and served in Laos from 1967 until 1969 — as Assistant Cultural Affairs Officer in Vientiane and as Branch Public Affairs Officer in Luang Prabang. After twenty months of intensive Japanese language training in Yokohama, he managed the Embassy’s media relations program in Tokyo from 1971 until 1976. He was transferred to Washington in 1976, spent one year as a Congressional Fellow and then worked as a Career Counselor in USIA’s Foreign Service Personnel Division. In 1980 he converted to the Civil Service and held several positions overseeing USIA’s Civil Service and Foreign Service personnel systems, including Foreign Service assignments, training, labor relations, and policy development. He served as a member of the Board of the Foreign Service and the Board of Examiners. (PDF).

#8. Jeanne Schulz | Jeanne Schulz is a retired member of the Foreign Service (Consular Cone) and an inactive member of the State Bar of California. She was the Executive Assistant to the Head of Mission, Office for Security and Co-operation in Europe (Bosnia and Herzegovina) 1999-2000. Prior to that Ms. Schulz was the Consul General in La Paz, Bolivia 1994-1998 and at Embassy Office Berlin 1989-1994. She served as the Hungarian Desk Officer 1988-1989 and Deputy of Overseas Citizens Services 1986-1988. In Mexico City Ms. Schulz served as the Deputy Chief of Citizens Services 1985-1986 and Head of the Property Unit 1984-1985. Her first overseas tour as a visa officer was in Bogotá, Colombia 1982-1984. Prior to joining the Service, Ms. Schulz was an Attorney-Advisor specializing in construction contract claims with the U.S. Army Corps of Engineers in Sacramento, CA and Frankfurt, Germany and the U.S. Postal Service Headquarters for a total of seven years. She also served as an Assistant Public Defender in Sacramento, CA, for two and a half years. (PDF)

#9. Nancy Serpa | Nancy Serpa, a retired Senior Foreign Service Officer, was appointed to the Foreign Service Grievance Board in October, 2008. She retired from the Foreign Service in April, 2007, after a year as Director of the Office of Performance Evaluation in the Bureau of Human Resources. Prior to that, she was Director of the Office of Recruitment, Examination and Employment (2001-2005) and Deputy Chief of Mission, then Charge d’affaires, in Lagos, Nigeria (1998-2001). Mrs. Serpa joined the Foreign Service in 1973, and served overseas in Cameroon and Zimbabwe, as well as in domestic positions in African Affairs. In 1988, she converted to the Civil Service, and worked in the Bureau of Congressional Relations, the Human Resources Bureau, and was Deputy Executive Director of the Bureau of African Affairs. In 1998 she was reappointed to the Foreign Service before her assignment in Nigeria.(PDF)

#10. Arthur A. Horowitz  |  Arthur A. (“Art”) Horowitz has amassed almost 50 years of diverse experience as an attorney in the fields of labor-management relations and employment discrimination law, both in the Federal and private sectors. Prior to his retirement from the Federal Labor Relations Authority in April 2001, he served as FLRA’s Settlement Judge in unfair labor practice cases, working with the parties to resolve their disputes without resort to litigation in over 82 percent of the 1000 cases referred to him. He also served as FLRA’s EEO Director during that same 6-year period, and previously was the agency’s Associate Solicitor responsible for drafting and supervising the preparation of Appellate and Supreme Court briefs as well as participating in oral arguments in defense of FLRA decisions. Before joining the FLRA as its Chief Counsel for Representation and Unfair Labor Practice Cases, he represented both labor unions and management in negotiating agreements and arbitrating contract disputes. He began his career, after graduating from Harvard Law School in 1964, with the National Labor Relations Board in Washington, D.C. as an appellate attorney. (PDF)

#11. Cheryl M. Long | Cheryl M. Long was appointed to the Foreign Service Grievance Board in 2012. She is a retired judge of the Superior Court of the District of Columbia, nominated by President Ronald Reagan in 1987 and serving from May 26, 1988 until her retirement in 2009. Judge Long tried cases in every division of the Superior Court: Criminal, Civil, Family, Probate, and Tax. She also has sat by designation several times on panels of the District of Columbia Court of Appeals.  Judge Long served for several years in the dual roles of Presiding Judge of the Probate Division and the Tax Division. This involved adjudicating all types of fiduciary matters, determining the fair market value of commercial properties, and deciding unique questions of administrative law. In one of her several tours of duty in the Civil Division, Judge Long presided over one of the Civil I calendars, involving the most complex litigation of employment discrimination, asbestos claims, various commercial disputes, and professional malpractice cases. Her trial experience on the Civil II calendars included jury trials and non-jury trials regarding personal injury, breach of contract, demands for injunctive relief, and other types of lawsuits. (PDF)

#12. William E. Persina | Mr. Persina is a labor arbitrator specializing in federal sector labor and employment law cases. In addition to his current service as a presiding member on the Foreign Service Grievance Board, he is also the Vice-Chair of the Government Accountability Office (GAO) Personnel Appeals Board, which rules on labor and employment law issues concerning GAO employees. He also is Chairman of the District of Columbia Office of Employee Appeals, which hears and decides appeals of District of Columbia government employees who have been the subject of various kinds of adverse personnel actions such as suspension, termination, or reduction in force. Mr. Persina was also the public member on the District of Columbia Police and Fire Retirement and Relief Board from 2010 to 2012. In that position, he participated in deciding disability retirement issues involving District of Columbia first responders. From 2007, when he retired from the Federal Labor Relations Authority (FLRA), to 2010 Mr. Persina was engaged in the private practice of law. (PDF)

#13. John M. Vittone  | John Vittone became a member of the Foreign Service Grievance Board in 2010 after a career of over 40 years as an attorney and a judge with the Federal Government. He joined the Department of Labor as Deputy Chief Judge in 1987, and was appointed Chief Judge in 1996. He also served as the Chair of the Board of Alien Labor Certification Appeals and was a liaison with other agencies within the Department of Labor, other federal agencies, and congressional offices. In 2002 and 2005, Judge Vittone led a delegation of judges, court administrators, and attorneys to Chile under the sponsorship of the Department of Labor’s Bureau of International Labor Affairs. In 2007 and 2009, he travelled to Beijing and Shanghai respectively to participate in Workshops on Administrative Reconsideration/Adjudication sponsored by the China Law Center of Yale University Law School. Prior to joining the Department of Labor, Judge Vittone was a judge with the Department of Transportation and Civil Aeronautics Board where he specialized in international route selection proceedings and airline mergers. (PDF)

#14. Susan R. Winfield | Susan Winfield was appointed a member of the Foreign Service Grievance Board in 2007 and has continuously served in that capacity under three different Secretaries of State. She has participated as a panel chair in the adjudication of approximately eighty-five grievance appeals.  Susan Winfield served as a trial judge of the District of Columbia Superior Court for twenty-one years before taking senior status in 2005. Judge Winfield served in the Civil, Criminal and Family Divisions of the Superior Court where she adjudicated complex criminal, civil and family matters. Judge Winfield also successfully mediated and adjudicated cases involving medical negligence, construction accidents, personal injuries, employment and labor disputes, as well as complicated domestic relations matters. She was appointed to be the Presiding Administrative Judge for the Family Division of the Court for a period of approximately three years. Judge Winfield also sat by special designation on the District of Columbia Court of Appeals. She authored two appellate opinions and participated as a member of the appellate panels on four other cases heard in the Court of Appeals. Judge Winfield continues to serve part-time as a senior judge at the Superior Court on a misdemeanor community court calendar where she practices restorative justice. (PDF)

#15. Garber A. Davidson — Chairman (no FSGB bio available)

#16. Elliot H. Shaller — Deputy Chairman (no FSGB bio available)

#17. Mary H. Witt  (no FSGB bio available)

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Related posts:

FSGB Recognizes Grievant’s “Enduring Dissatisfaction” With @StateDept’s 40 Year Old Grievance Case — Where’s the Medal?

Posted: 1:21 am EDT

 

Charles William Thomas. You may not remember that name. He was a Foreign Service Officer. In April 1971 he shot and killed himself.  The Thomas case led to changes in the promotion and personnel system and helped usher in a grievance program at the Department.  Below excerpted from ADST:

Charles William Thomas was a bright mid-career Foreign Service officer who was selected out because his efficiency report was mixed with a poorer officer of the same name. After his lifelong dream of serving in the State Department came crashing down, Thomas committed suicide and his case became a cause celebre. His wife Cynthia held the Foreign Service and the State Department responsible.
[…]
In 1973, U.S. District Court Judge Gerhard Gesell rendered a decision in Lindsey v. Kissinger declaring the lack of procedural safeguards in State’s selection-out system unconstitutional. A Foreign Service Grievance Board with public members was established in 1976, and procedural safeguards were created through consultations with AFSA.

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In April this year, the Foreign Service Grievance Board (FSGB) dismissed FSGB Case No. 2014-042 after the State Department sought a preliminary ruling on the grievance, contending that “the grievance was untimely filed and not covered under the Board’s jurisdiction.”

This case is notable not only because officials of the State Department of old ignored the Board’s original ruling in 1972, but also because ignoring the grievance has stretched into the current leadership of the State Department.  The unnamed grievant in this case apparently wrote to Secretary John Kerry on May 14, 2014, and again on May 28, asking that he implement the 1972 recommendations of the Grievance Committee. Apparently, the grievant did not even received a response. The current FSGB accepted the grievant’s appeal with an effective filing date of October 22, 2014 but then dismissed it  for untimely appeal.

Grievant is a former Foreign Service Officer (FSO) who was appointed as an FSO Class 6 on November 26, 1954. He had been in grade for eight years as a FSO Class 4 when the 1968 Selection Boards did not recommend him for promotion to Class 3. On January 17, 1969, the Department of State (agency, Department) officially notified him that he would be separated for expiration of time in class (TIC) effective April 30, 1969. Having already learned informally of his proposed termination, grievant met personally with the then Secretary of State on January 2, 1969, and gave him a paper, “Notes for the Secretary.” The notes detailed policy clashes grievant had with his superiors, which he believed had prevented his promotion. The Secretary appointed two senior inspectors to conduct an investigation. The inspectors made grievant’s “Notes” available to his supervisors and on January 8, 1969, the supervisors gave their comments on the “Notes” to the Secretary. The inspectors furnished their report1 to the Secretary on January 15. The submissions led the Secretary not to take any action to stop the separation.

On September 26, 1969, after receiving several extensions of his employment, grievant requested a hearing under 3 FAM 1820 (“Grievances”), becoming the first Foreign Service employee to do so. He charged that his supervisors’ comments introduced untrue, slanderous and misleading statements into the agency’s records.

Grievant was separated on October 4, 1969. He was not eligible to retire and collect an annuity because he did not meet the age requirement.2 The Department helped him secure an immediate civil service position on October 5, 1969 with the Department of Defense.

Following a period during which grievant sought information to support his case, a three-member Grievance Committee commenced hearings on March 3, 1971. On September 27, 1972, the Committee found generally in grievant’s favor. With one member voicing exceptions to some of its eleven recommendations, the Committee recommended, inter alia, that the agency appoint grievant to FSO Class 3, credit the time he spent in government service since his separation towards Foreign Service retirement, and pay his legal expenses. The Committee submitted its report to the Director General instead of the Deputy Assistant Secretary of State for Personnel, because the latter had appeared as a witness and disqualified himself. The Committee suggested that the Deputy Secretary be the final reviewing officer.

The reviewing officers decided not to accept the recommendations. In 1977, grievant filed an appeal3 with the Foreign Service Grievance Board requesting reinstatement, which request was denied because the Board found the appeal untimely.4 On October 13, 1993, two Senators wrote to the Secretary of State on grievant’s behalf.

Noting that grievant’s claim was adjudicated in his favor by the Grievance Committee but never implemented, they suggested that grievant may not have been notified of his eligibility to pursue administrative and judicial remedies provided in legislation. They asked how their committee could be assured that the Department would implement the recommendations in grievant’s case. There is no evidence of the Secretary’s response in the record of proceedings (ROP).

Apparently, the grievant also seek confirmation that his hearing be held “completely within State Department regulations at the time, so that he would not be required to argue before a court that the Department is improperly failing to recognize the legitimacy of its past responsibility for implementing the recommendations which resulted from his hearing.”

Grievant wrote to the current Secretary of State twice and when he did not get a response, he wrote to the FSGB on September 12 and October 16, 2014. He explained that he sought a negotiated settlement of retirement pay in lieu of enforcement of the remedies granted to him in 1972. The Board accepted his appeal with an effective filing date of October 22. On December 12, 2014, the agency asked the Board to make a preliminary determination that grievant’s appeal should be dismissed, on the grounds that the Board lacked jurisdiction.

The FSGB ruling:

We recognize grievant’s unusual position in the history of this Board as well as his enduring dissatisfaction with the outcome of the hearing process. As noted earlier, our analysis today is limited to jurisdiction and does not address the merits of grievant’s case. In accordance with 22 CFR § 904.2, the Board makes the following preliminary determination on jurisdiction: because grievant has not shown that his appeal was made “not later than two years after the occurrence giving rise to the grievance,” nor is there evidence that grievant was “unaware of the grounds for the grievance,” we find grievant’s appeal untimely.

Grievant was separated on October 4, 1969 under the rules deemed unconstitutional in 1973 after the Lindsey v. Kissinger ruling.  The Grievance Committee recommended that grievant be reappointed to a higher position, a recommendation ignored by senior officials in the State Department.  Last year, the FSGB took the case then says this case was filed late, and the Board lacks jurisdiction. But the members recognize the grievant’s “enduring dissatisfaction.”  Yeah, there’s that. And the State Department lumped this case with the trash with no effort to fix or mitigate the alleged wrongs it did to one individual some four decades ago.

Read the 40 year old grievance case below:

 

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Senior FSO Solicits Favorable Comments From Subordinates, Wants GSO “To Grow a Pair”

Posted: 1:53 am EDT

 

An unnamed senior FSO solicited favorable statements about herself from her subordinates and in an email to her supervisor, the DCM, made disparaging remarks that the General Services office “needs to grow a pair.” Both made it to the FSO’s evaluation report which became the subject of a grievance case before the Foreign Service Grievance Board (FSGB Case No. 2014-029).

The FSGB decision: Grievant, has failed to show by a preponderance of evidence pursuant to 22 C.F.R. §905.1 that her 2013 Amended EER documenting her performance while serving as Principal Officer/Consul in contained inaccuracies, omissions, errors, or falsely prejudicial information to such an extent that it must be expunged in its entirety. The appeal is denied in part and granted in part, but only for a remand with instructions to delete one phrase in the Amended EER. No other relief is granted.

Excerpt below:

Grievant is a Senior Foreign Service Officer, class of Counselor (FE-OC). She appeals the Department’s partial denial of her grievance in which she seeks the following relief: expunction from her Official Performance File (OPF) of her 2013 Amended Employee Evaluation Report (EER); extension of her time-in-class by one year; and a reconstituted 2014 SB to consider her file, if in fact she was low-ranked by the 2014 Promotion Board based upon her 2013 Amended EER.

Grievant joined the Foreign Service in 1987 as a Political Officer, and has had tours both overseas and in Washington. She has served in a variety of increasingly senior positions, including Deputy Chief of Mission (DCM)/Charge d’affaires in [REDACTED] Principal Officer in [REDACTED]  and Special Advisor to the Assistant Secretary in the [REDACTED] Bureau in Washington. The recipient of a number of awards throughout her career, she was also recommended for Performance Pay while serving as Principal Officer/Consul General in [REDACTED]. Grievant describes herself alternatively as “autistic” and a person who suffers from a disability known as Asperger’s Syndrome (a condition on what is known as the autism “spectrum”).

The contested statements concern two incidents, the basic facts of which are not in dispute and are summarized below. One incident involved grievant’s solicitation of favorable statements about herself from subordinates. The other incident arose from a remark grievant made to her rater, expressing grievant’s views of her own colleagues and using language that the rater deemed inappropriate.

The Solicitation of Statements from Subordinates. The first incident arose when grievant asked her locally-engaged (LE) assistant to gather from other LE staff written statements in which staff would describe what they liked about grievant, or how they viewed her as a boss. On December 15, 2012, grievant sent an email to her LE assistant asking that “each employee who is able or wants to do so” submit something written stating “if they liked working for me or something they liked about me as a boss.” Grievant asked her assistant (REDACTED) to compile such favorable comments for presentation to the grievant at the time of grievant’s upcoming birthday. In this email, grievant characterized the employee statements as “a gift I can keep with me always.”

When the DCM learned of grievant’s actions, she accused grievant of soliciting a gift from subordinates. The DCM issued a Letter of Admonishment to grievant, citing the email of December 15, 2012 to [REDACTED] asking for a “gift” from subordinates on the occasion of grievant’s birthday.2 In the Letter of Admonishment, the DCM instructed grievant to rescind that request. In an email of January 14, 2013, the DCM transmitted to grievant a copy of the Letter of Admonishment, directing grievant to comply with the instructions in the Letter, and to sign the Letter and return it to her. Grievant responded with a refusal to implement the instructions.

Grievant’s Remarks About Colleagues. The second incident concerns an email grievant sent to the DCM in preparation for a visit by the Secretary of State of [REDACTED]. Locally-engaged [REDACTED] staff would be coming to  [REDACTED] to support the visit. The scarcity of hotel rooms or accommodations for them became a pressing issue. In an email of August 6, 2012, to the DCM, grievant expressed her frustration that [REDACTED] American management staff, the Management Officer, and the General Services Officer (GSO), were not doing enough to secure such accommodations. Grievant wrote, in pertinent part:

For months and even during the current pre-advance, I have been trying to get the people to focus on finding hotel space or working with the government to find hotel space for the support staff. They refused to do so. Instead, they are living under the fantasy that they will be able to force the USG, with less than a month to go, to accredit FSNs as members of the US delegation and they will be able to stay with other members of the US delegation on .

Both you and I know that the USG is not going to accredit FSNs. If you are not accredited, you are not going to sleep on . Even if they want to continue to entertain this fantasy, check out hotels as a plan B. However, MGT says they have a plan B – staying in the Consulate’s non-existent TDY housing (LOL), bunking with Consulate officers (NO!), or sleeping through the night at the Consulate (H$*# to the No!).

One problem is that when the American officers broach the subject with FSNs, the FSNs refuse to look at hotel options, because the FSNs want to be accredited. GSO needs to grow a pair.

The appeal is granted in part and denied in part. Pursuant to the Board’s findings, the sole form of relief granted is that the case is remanded to the Department with instructions to make two modifications to the Amended EER. One, the Department is hereby ordered to delete the words “gift of” in every place in which the Amended EER contains the phrase “gift of positive statements from her direct reports.” Second, the Department is hereby ordered to delete from the section on “Interpersonal Skills” the phrase “and in doing so, did not set the standard for integrity.”

Read in full: 2014-029 06-11-2015 – B – Decision_Redacted (pdf).

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