FSGB Case: When “there were no mitigating circumstances” considered despite conditions identified by MED

 

Via FSGB: FSGB Case No. 2019-034, July 2, 2020
Held – The Board found that the Department of State (the “Department” or “agency”) did not establish cause to separate the charged employee from the Foreign Service because the Deciding Official (“DO”) did not consider evidence of his personality problems as a mitigating circumstance. The Board was persuaded by evidence in the record that the agency should exercise its authority to initiate, as an alternative to separation, the option of a disability retirement, pursuant to 3 FAM 6164.3(a).
Case Summary – The Department charged the employee with Improper Personal Conduct based upon a pattern of unprofessional and inappropriate conduct toward colleagues, primarily hundreds of unwanted emails and text messages with sexual content. The Department’s Bureau of Medical Services (“MED”) had conducted a mental health evaluation of the charged employee and concluded that “to a reasonable degree of certainty,” the charged employee exhibited “behavior or symptoms (which may not rise to the level of formal diagnosis) of an emotional, mental or personality condition that may impair his reliability, judgment or trustworthiness.” The DO determined that the charged employee committed the charged offenses and that there were no mitigating circumstances. In finding no mitigating circumstances, the DO attested in the separation hearing that she did not take into consideration either the charged employee’s emotional, mental or personality condition that MED identified or the charged employee’s emails to coworkers that included references to his communications with divine beings as well as references to his own possible mental illness. The DO notified the charged employee of her proposal to separate him from the Foreign Service and provided him the opportunity to reply in person or in writing. The DO recommended separating the charged employee to promote the efficiency of the Service. The charged employee did not respond in person or in writing to the DO’s notification of her proposal to separate him from the Service recommendation or participate in the separation hearing. The Board found the Department did not establish cause to separate the charged employee because the DO did not consider the so-called Douglas Factor #11 on the agency’s checklist that relates to mitigating circumstances surrounding personality problems, and did not exercise the agency’s authority under 3 FAM 6164.3(a) to initiate a disability retirement on behalf of the charged employee as an alternative to disciplinary action.

[…]

We do not claim medical or psychological expertise, but, in our perusal of the record, we found indicators that the charged employee was described as exhibiting personality problems, and possibly more serious mental impairment or illness, from the emails and text messages he sent to former colleagues. For example, in specification 84, the charged employee is charged with offering to help Ms. B draft a complaint and get himself fired and committed to a mental hospital for the rest of his life. Also, in specifications 86 and 87, respectively, the charged employee is alleged to have first made reference to someone wanting him to commit suicide, then later noted asking God if his wife would commit suicide and informing Ms. D that the Virgin Mary told him to inform Ms. D that he knew she was worried that he might kill himself. Further, the charged employee displayed unusual behavior when he emailed Ms. B on June 6, 2017 at 8:31 p.m. that he had declined to see a psychiatrist before consulting attorneys about his options to file a lawsuit.11 That suggests the possibility that someone raised with the charged employee the matter of seeking a psychological consultation or examination.
In addition, DS ROI #1 included a statement by the charged employee’s wife that she believed her husband suffered from mental impairment, requiring medical treatment. The record further contains evidence, according to the spouse, that MED had conducted a thorough mental health evaluation of the charged employee on four separate dates. Similarly, DS ROI #2 concluded that the charged employee had expressed that he heard voices and instructions from God, the Devil, and the Virgin Mary. (See Specifications 6-8, 25, 29, 38, 76 and 87).
[…]
In the instant case, while the agency has provided credible evidence that the charged employee’s conduct does not promote the efficiency of the Service, we find the decision falls short on consideration of so-called Douglas Factor #11 on the agency’s checklist that relates to personality problems as a mitigating factor. We also credit the charged employee’s 19 years of distinguished service before his display of conduct that gave rise to the LOR and the proposal to separate him from the Service.12
Moreover, the Board is unaware of a requirement that a DO must be privy to private medical information or be a medical professional to initiate an application for disability retirement. To the contrary, under 3 FAM 6164.2-3, HR/ER, in consultation with MED, can initiate an application for disability retirement on behalf of an employee if, inter alia, 1) the agency has issued a proposal to remove the employee, 2) the agency has a reasonable basis to conclude that illness may be the cause of the employee’s conduct which renders him unable to work satisfactorily, or 3) the employee is incompetent and there is no guardian willing to file an application on the employee’s behalf. The existence of any one of these three conditions is sufficient for the agency to initiate an action for disability retirement, and the Board finds that the conditions in 1) and 2), supra, are apparent in this case.
Accordingly, the Board is of the view that the agency has not considered all mitigating factors before recommending separation for cause and has not exercised its authority to initiate, as an alternative to separation, the option of a disability retirement for the charged employee where grounds for such a retirement are apparent on the record. Pursuant to 3 FAM 6164.3(a), MED then would determine whether the charged employee is incapacitated for useful and efficient service, which is the standard for disability retirement.

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@StateDept Did Not Comply With Americans With Disabilities Act (ADA) Requirements

 

Via FSGB: FSGB Case No. 2018-003
HELD – The Board granted grievant’s appeal, finding that the U.S. Department of State (Department) did not comply with the requirements of the Americans With Disabilities Act (ADA) when it failed to provide grievant with a reasonable accommodation for her disability. The Board directed, among other things, that the parties engage in the interactive process required under the ADA to determine a reasonable accommodation.
SUMMARY – Due to a lengthy illness with cancer grievant, while serving on a limited noncareer appointment in the consular skill code, did not receive an Employee Evaluation Report (EER) from an overseas posting. A Commissioning and Tenure Board (CTB) deferred a decision on tenure until she was able to be appraised on her performance at an overseas posting. The Department assigned grievant to an overseas posting to enable her to receive such an EER. However, as a consequence of her chemotherapy, grievant experienced neuropathy in her hands, and she developed an allergy to nickel. Accordingly, she requested that she be permanently reassigned assigned to the economic skill code, which she said would require handling a smaller volume of materials. The Department denied that accommodation request but did provide her with special office equipment that it said would address her nickel allergy. Grievant continued to experience neuropathy during her overseas assignment and was medically curtailed from post without receiving an EER. As a result, her next CTB recommended that she not receive tenure, and the Department terminated her appointment. The Board held that the Department failed to meet the requirement under the ADA and Department regulations to engage with an employee with a qualifying disability, such as grievant, in an “interactive process” to determine a reasonable accommodation. Although grievant’s request to be permanently reassigned to another skill code would be a “last resort” under Department regulations, that did not relieve the Department of the duty to consider other options such as assigning grievant to positions in the consular skill code that did not involve processing large numbers of passport and visa applications. Further, the Department had an ongoing duty to find a reasonable accommodation when it became clear that the accommodation it did provide was not effective. Accordingly, the Board directed that when grievant was cleared medically to serve in an overseas posting, the parties engage in the interactive process to identify an effective accommodation for grievant’s disability.

 

US Mission Iraq Gets One COVID-19 Case From DOS Chartered Flight Out of Dulles

 

We recently learned that an individual who arrived at US Mission Iraq on a charter flight from Dulles, VA on July 1st has tested positive of COVID-19 and has been in quarantine since arrival.
We understand that the chartered aircraft was a 767 with 2-2-2 seating in business class and 2-3-2 seating in economy. The middle seat in economy was left open but the remaining seats were filled. The flight included over a hundred passengers who were either US direct-hire or contractors supporting Mission Iraq. We understand that some passengers purposefully did not wear their masks correctly during the flight.
Passengers were notified about the case on July 9th when all Mission personnel received an email from the Front Office. Passengers reportedly also received a call from post management to confirm they’d seen the email. The mission notification indicates that post is “in the process of contact tracing” to include at various points since the flight’s departure on June 30th. 
We also learned that post has no idea if the individual was COVID positive at the time of the flight. The CDC is advising people to “stay home for 14 days from the time you returned home from international travel” but what do you do with travel within the United States?
The passengers are subject to a 14-day quarantine upon arrival (apparently now standard procedure). However, there were understandably concerns that MED and post management did not provide details about when the infected person was tested or why there was over a week’s delay in post notification. It is also understood that post has  alerted those who were in close proximity to the infected individual but people have no idea on how wide an area of the plane was notified.    
We were wondering if employees can get a COVID-19 test if they ask for it or if tests are only available to those manifesting COVID-19 symptoms.
We learned today that those on the flight received a reminder today to check in with the MED unit before rejoining the general population on July 14. They were advised to discuss any symptoms they had during quarantine with MED and, “if we [MED Unit] feel it is necessary, we will perform a COVID-19 test”.
Does MED Iraq have the ability to process COVID-19 tests at post; and if not, where are these tests sent and what is the turn around for results? What about other posts without Embassy Baghdad’s resources?
Given that the U.S. is now a hotspot, are State Department employees and contractors tested prior to their departure to Iraq or elsewhere?
We should note that the United States is currently #1 in confirmed COVID-19 cases in the world, and with over 137,000 deaths, it is also #1 in COVID-19 deaths in the world. For detailed situation update worldwide, see the European Centre for Disease Prevention and Control.

Kazakhstan Reinstates Quarantine Restrictions Throughout the Country For At Least 14 Days

 

On July 8, the US Mission in Kazakhstan  issued a Health Alert noting that the Kazakhstani Government has announced the reinstatement of quarantine restrictions throughout the country effective July 5.  Also that the Kazakhstani Ministry of Health has confirmed 51,059 cases of COVID-19 in the country as of July 8, 2020

New Quarantine Measures: The Kazakhstani Government has announced that quarantine restrictions will be reinstated throughout the country starting July 5. These restrictions will be in effect for at least 14 days, and may be extended or strengthened. Other municipalities may introduce restrictions beyond the below and with little or no notice; for the latest information, see your respective city’s website. Links are provided on our COVID-19 page.  

·         Transportation: Regional bus service will be suspended, and municipal transportation will be limited. Rail travel will be limited. Domestic and international air travel will remain at current levels.  

·         Businesses Shuttered: Most business will be closed, including beauty salons, gyms and fitness centers, pools, closed markets, beaches, cultural facilities, museums, exhibits, entertainment centers, religious facilities, movie theaters, food courts, and recreational facilities.  

·         Essential Businesses Exempt: Some essential business will continue to operate, including grocery stores, open-air markets, and pharmacies. Health centers will offer services by appointment. Limited enterprises, such as companies in construction, agriculture, auto service, and commercial banks will remain open. Restaurants will be open for delivery or take-out; summer patios will remain open.  

·         Personal Movement Limited: All large events and family gatherings are prohibited. Individual outdoor fitness activities are permitted, and people may walk in parks and other public spaces in groups of three or less. Individuals older than 65 years old are limited from leaving their residence.  

For U.S citizens who need to travel by vehicle from areas with restricted movement in order to reach an airport with international flights, the only assistance we can provide is to request passage through the checkpoints from the Government of Kazakhstan (GoK).  Based on the GoK’s requirements, you must provide us the below information at least four business days before your scheduled flight. Address this information to the following addresses: AlmatyUSCitizen@state.gov or Nur-SultanUSCitizen@state.gov. This information will be shared with the Kazakhstani Ministry of Foreign Affairs. 

[…]

On March 14, 2020, the Department of State authorized the departure from any diplomatic or consular post in the world of US personnel and family members who have been medically determined to be at higher risk of a poor outcome if exposed to COVID-19.

Read more:

US Embassy Brazil: Ambassador Chapman Takes “Precautions” After July 4th Lunch With Bolsonaro

 

Where Americans Are Not Welcome Due to USA’s Epic Failure in Containing COVID-19 Infections #RealPostoftheMonth

 

Fourth of July 2020: Who’s Doing What Where During This Global Pandemic?

 

U.S. Embassy Brasilia, Brazil

U.S. Embassy Prague, Czech Republic

U.S. Embassy Bangkok, Thailand

U.S. Embassy Belgrade, Serbia

U.S. Embassy Phnom Penh, Cambodia

U.S. Embassy The Hague, The Netherlands

U.S. Embassy Seoul, South Korea

U.S. Embassy Athens, Greece

 

U.S. Embassy Singapore, Singapore

U.S. Embassy Kuala Lumpur, Malaysia

US Embassy Kabul, Afghanistan

(Same stock photo used by US Embassy Prague, attributed here to Getty Images).

U.S. Embassy Banjul, The Gambia

U.S. Embassy London, UK

U.S. Consulate Thessaloniki, Greece

U.S. Embassy Kolonia, Micronesia

U.S. Consulate Calgary, Canada

 

U.S. Embassy Managua, Nicaragua

U.S. Embassy Lusaka, Zambia

 

U.S. Mission Italy

U.S. Embassy Antananarivo, Madagascar

U.S. Consulate Milan, Italy

U.S. Embassy Podgorica, Montenegro

U.S. Embassy Mexico City, Mexico

U.S. Consulate General Toronto, Canada

US Mission Saudi Arabia Now on Voluntary Evacuation After COVID-19 Cases Leaked #HoldOn

On Monday,  June 29, 2020, the State Department issued an updated Travel Advisory for Saudi Arabia announcing that on Wednesday, June 24, it authorized the voluntary evacuation of nonemergency personnel and family members from the US Mission in Saudi Arabia. This includes Embassy Riyadh, and the consulates general in Jeddah and Dhahran. The order was issued “due to current conditions in Saudi Arabia associated with the COVID-19 pandemic.”

On June 24, 2020, the Department of State authorized the departure of non-emergency U.S. personnel and family members from the U.S. Mission to Saudi Arabia, which is comprised of the Embassy in Riyadh and the Consulates General in Jeddah and Dhahran, due to current conditions in Saudi Arabia associated with the COVID-19 pandemic.  

Apparently, dozens of mission employees got sick last month, and many more were quarantined. A third country national working as a driver for the mission’s top diplomats had reportedly died. The Embassy’s Emergency Action Committee “approved the departure for high risk individuals” but the State Department “denied” the request advising post  “to do whatever it can to hold on until the Covid problem improves.”
Whatthewhat? Hold on is the plan?
Also that “more recently, officials on the embassy’s emergency action committee recommended to Mr. Abizaid that most American employees should be ordered to evacuate, with only emergency personnel staying. Mr. Abizaid has not acted on that.”
Reminds us of what happened at some posts back in March (Is @StateDept Actively Discouraging US Embassies From Requesting Mandatory Evacuations For Staff? #CentralAsia? #Worldwide?). COVID-19 Pandemic Howler: “No one in DC, to include S, gives AF about AF”.  More recently, reports of COVID-19 cases at US Embassy Kabul (US Embassy Kabul: As Many as 20 People Infected With COVID-19 (Via AP).  Where else?

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@StateDept Updates Regulations to Include New Compensation For Certain Injuries #MysteryIllness #TheThing

 

On May 28, 2020, the State Department updated the Foreign Affairs Manual to include Compensation for Certain Injuries for State, USAID, USAGM, Commerce, Foreign Service Corps-USDA Foreign Service and Civil Service Employees who becomes injured “by reason of a qualifying injury and was assigned to a duty station in the Republic of Cuba, the People’s Republic of China, or another foreign country as designated by the Secretary of State under 3 FAM 3666.”

3 FAM 3660 COMPENSATION FOR CERTAIN INJURIES
(CT:PER-994;   05-28-2020)
(Uniform State/USAID/USAGM/Commerce/Foreign Service Corps-USDA)
(Applies to Foreign Service and Civil Service Employees)

a. Pursuant to Public Law 116-94, Division J, Title IX, section 901, Congress allows the Secretary of State to pay benefits to certain Department of State personnel under chief of mission authority who incurred a qualifying injury and are receiving benefits under section 8105 or 8106 of Title 5, United States Code.  It further authorizes the Secretary of State to pay for the costs of diagnosing and treating a qualifying injury of a covered employee, as defined in 3 FAM 3662, that are not otherwise covered by chapter 81 of Title 5, United States Code (the Federal Employees Compensation Act (FECA)) or other provision of Federal law; and to pay the costs of diagnosing and treating a qualifying injury of a covered individual or covered dependent, as defined in 3 FAM 3662, that are not otherwise covered by Federal law.

b. The Bureau of Global Talent Management (GTM) administers this program.

c.  Under this program, covered employees, as defined in 3 FAM 3662, may qualify for a monthly monetary benefit if they are receiving benefits under section 8105 or 8106 of Title 5, United States Code.

d. Under this program, a covered employee, covered individual, or covered dependent, as defined below, may qualify for reimbursement for the costs of diagnosing and treating a qualifying injury which are not otherwise covered.

e. Payments made under this provision are not considered workers’ compensation payments.

[…]

Covered employee:  An employee of the Department of State who, on or after January 1, 2016, becomes injured by reason of a qualifying injury and was assigned to a duty station in the Republic of Cuba, the People’s Republic of China, or another foreign country as designated by the Secretary of State under 3 FAM 3666.

(1)  For purposes of 3 FAM 3663, the following career-type employees are considered “employees of the Department of State” to whom this benefit may apply:  Department of State Foreign Service Officers, Department of State Foreign Service Specialists, and career Department of State Civil Service employees working overseas on detail or a Limited Non-Career Appointment (LNA).

Note that per FAM: The following are NOT considered “employees of the Department of State” for purposes of 3 FAM 3663:  retired employees and employees of other agencies; employees on limited appointments including LNAs (except as discussed above), Family Member Appointments (FMA), Foreign Service Family Reserve Corps (FSFRC), Expanded Professional Associates Program (EPAP), and Consular Affairs – Appointment Eligible Family Member (CA-AEFM) Adjudicator positions. Employees hired on a Personal Services Agreement (PSA) or Personal Services Contract (PSC) are also not employees under this section.     

 (2)  For purposes of 3 FAM 3664, the following employees are considered “employees of the Department of State” to whom this benefit may apply: Department of State Foreign Service Officers; Department of State Foreign Service Specialists; Department of State Civil Service employees; employees on Limited Non-Career Appointments (LNA), Family Member Appointments (FMA), Foreign Service Family Reserve Corps (FSFRC), Expanded Professional Associates Program (EPAP), and Consular Affairs – Appointment Eligible Family Member (CA-AEFM) Adjudicator positions.

Note that the following are not considered “employees of the Department of State” for purposes of 3 FAM 3664:  employees hired on a Personal Services Agreement (PSA) or Personal Services Contract (PSC); retired employees, and employees of other agencies.

Covered individual:  An individual who, on or after January 1, 2016, becomes injured by reason of a qualifying injury and is

(1)  detailed to a duty station in the Republic of Cuba, the People’s Republic of China, or another foreign country designated by the Secretary of State under 3 FAM 3666; or

(2)  affiliated with the Department of State, as determined by the Secretary of State.

(3)  Per Memorandum signed 24 April 2020, the Under Secretary for Management has determined that other agency employees under chief of mission authority are “affiliated with the Department of State.”

Covered dependent:  A family member of a Federal employee who, on or after January 1, 2016,

(1)  accompanies the employee to an assigned duty station in the Republic of Cuba, the People’s Republic of China, or another foreign country designated by the Secretary of State under 3 FAM 3666; and

(2)  becomes injured by reason of a qualifying injury.

Family member:  An individual who is an “Eligible Family Member” as defined in 14 FAM 511.3.

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#EU Lifts Travel Restrictions For Residents of 14 Countries, Excludes U.S. Travelers #realitycheck

 

Via the EU: Council agrees to start lifting travel restrictions for residents of some third countries from 1 July 2020
The Council today adopted a recommendation on the gradual lifting of the temporary restrictions on non-essential travel into the EU. Travel restrictions should be lifted for countries listed in the recommendation, with this list being reviewed and, as the case may be, updated every two weeks.
Based on the criteria and conditions set out in the recommendation, as from 1 July member states should start lifting the travel restrictions at the external borders for residents of the following third countries:
    • Algeria
    • Australia
    • Canada
    • Georgia
    • Japan
    • Montenegro
    • Morocco
    • New Zealand
    • Rwanda
    • Serbia
    • South Korea
    • Thailand
    • Tunisia
    • Uruguay
    • China, subject to confirmation of reciprocity
Residents of Andorra, Monaco, San Marino and the Vatican should be considered as EU residents for the purpose of this recommendation.
The criteria to determine the third countries for which the current travel restriction should be lifted cover in particular the epidemiological situation and containment measures, including physical distancing, as well as economic and social considerations. They are applied cumulatively.
Regarding the epidemiological situation, third countries listed should meet the following criteria, in particular:
    • number of new COVID-19 cases over the last 14 days and per 100 000 inhabitants close to or below the EU average (as it stood on 15 June 2020)
    • stable or decreasing trend of new cases over this period in comparison to the previous 14 days
    • overall response to COVID-19 taking into account available information, including on aspects such as testing, surveillance, contact tracing, containment, treatment and reporting, as well as the reliability of the information and, if needed, the total average score for International Health Regulations (IHR). Information provided by EU delegations on these aspects should also be taken into account.
    • Reciprocity should also be taken into account regularly and on a case-by-case basis.
The Council’s announcement notes that the recommendation “is not a legally binding instrument and that “the authorities of the member states remain responsible for implementing the content of the recommendation.” It further notes that “a Member State should not decide to lift the travel restrictions for non-listed third countries before this has been decided in a coordinated manner.”

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