Foreign Service Grievance Board Annual Report 2020-Statistics (3/1/21) – Updated

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Update 3/30:  A source with insight into the FSGB process informed us that  the new metric starts counting the days when the file is complete and ready for adjudication.  Prior to file completion, processing times depend heavily on how promptly the grievant and agencies provide documentation.  It appears that the FSGB want to focus on the period that is totally under the FSGB’s control.  That’s understandable but that does not give a full picture. The source agreed that it would have been useful to also report the total processing time as previously calculated. There’s no reason why FSGB can’t include the processing time from ROP closure to decision, as well as the total processing time as it has done in the past. We also learned that to keep cases moving forward during the October 2020 to mid-February 2021 staffing gaps, the remaining 11 FSGB members reportedly had to increased their case work hours on average by about 21 percent. Some cases were also reportedly judged by two-member panels instead of the usual three-member panels. 

Last December, AFSA called on then Secretary of State Mike Pompeo to fulfill his statutory responsibility (22 U.S.C. 4135b) to make appointments to the Foreign Service Grievance Board (FSGB). Eight seats on that board have been vacant since October 1 due to inaction on their nominations. “The nomination paperwork was transmitted to Secretary Pompeo’s staff on or before August 28, 2020, giving him at least four weeks to act prior to the September 30 expiration of the terms of office of the eight positions. If Secretary Pompeo had adverse information on any nominees, he could have allowed the Foreign Service agencies and AFSA to submit replacement nominations prior to September 30. Unfortunately, Secretary Pompeo has taken no action over the past three months.”
In the March 2021 issue of the Foreign Service Journal, AFSA Retiree Representative John Naland wrote that  “Secretary Pompeo left office without acting on the nominations, leaving it to his successor to fulfill that responsibility. Secretary Antony Blinken did so within two weeks of taking office. Perhaps by the time a future historian finds this column, Secretary Pompeo will have explained his failure to act. But my impression today as the AFSA Governing Board member charged with overseeing the annual FSGB nomination process is that Secretary Pompeo’s dereliction of duty was of a piece with the arrogance and contempt for the rule of law that he frequently showed to committees of Congress, the media and others. Secretary Pompeo’s passive-aggressive evisceration of the FSGB deserves to be recorded and remembered.”
Lawrence C. Mandel, the Chairperson of the Foreign Service Grievance Board issued the Annual Report for 2020 on March 1, 2021. The report notes that staffing was complicated by delay in the re- appointment of the Board’s Senior Advisor and two annuitant members, and the delay in appointment of five new Board Members, resulting in vacancies of nearly half of their members over the final three months of the year. Members of the Board are appointed for terms of two years by the Secretary of State.
The Annual Report says that despite these staffing challenges, “the Board closed 66 cases – almost as many cases as in 2019 (69). The average time to issue decisions was 66.9 days after closure of the Record of Proceedings (ROP).”
Whoa, whoa, wait, “the average time to issue decisions was 66.9 days after closure of the Record of Proceedings (ROP)?”  That got our attention. Based on the previous annual reports, the disposition of a case was measured from the time of filing to Board decision (or withdrawal/dismissal); not from when decisions are issued after closure of the ROPs.
In 2019, the disposition of cases, as we normally understood it, took 57 weeks, which would have been 399 days. In 2020, the average time is 66.9 days which is just 9.5 weeks. See below:
2020: Average time for disposition of a case, from closure of Record of Proceedings to Board decision was 67 days 
2019: Average time for disposition of a case, from time of filing to Board decision, withdrawal, or dismissal, was 57 weeks. A number of older cases were closed this year, including some that had to await decisions in other fora. Additionally, fewer cases were settled and withdrawn this year, which increased the average time for disposition.
2018: Average time for disposition of a case, from time of filing to Board decision, withdrawal, or dismissal was 41 weeks. Excluding three cases that were significantly delayed by extraordinary circumstances, the average time for disposition was 38 weeks.
2017: Average Time for disposition of a case, from time of filing to Board decision, withdrawal, or dismissal was 41 weeks.
2016: Average Time for disposition of a case, from time of filing to Board decision, withdrawal, or dismissal was 39 weeks.
So we asked the FSGB about this new way of describing the average time of disposition of FSGB cases.  The new way of describing duration of cases is not from time of filing, but rather from when a decision is issued after closure of the ROPs.
We also wanted to know what impact the 3 month delay in appointing/reappointing eight seats to the Board affected the processing of their cases.
We received a brief response that says in part, “We allow the FSGB Annual Report, as submitted to Congress, to speak for itself.”
Help alert! That is, we need help to understand stuff. We still can’t understand the way they calculate the disposition of a case. Counting from closure of ROPs to Board decision does not tell us the actual duration of cases, does it?
Good news though; at least they do not have an email chewing doggo over there!

###

Post in Search of a Mission: “Now, I found, that the world is round and of course, it rains everyday ….”

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1) If there are fewer than two dozen staff members. 
2) If they live in austere conditions even without COVID, but particularly during COVID they are limited to their homes and the embassy. Nothing else. 
3) If there are no flights servicing pouch needs coming to post. This means the staff cannot procure needed items with regularity, including food and medicine. 
4) If there are no relationships with the host government. This means the embassy remains open simply to support itself. 
5) If staff is top heavy with multiple FS-01 positions and few FS-02 and below officers. 
6) If staff lives together due to health concerns. 
7)  If there are no option to telework even amidst COVID. Security requirements preclude remote access. 
8) If a staff member gets COVID, they will likely put the entire embassy at risk. Flight clearance to get an OPMED evacuation flight is difficult to obtain from host nation and would likely necessitate evacuating all who had been exposed (thus shuttering the embassy) because of the OPMED cost, and the delayed timeline of clearance to land and cost of repeated flights. 
9) If local staff continue to be paid even though most never come to work, and have been forced to stay home since COVID. 
10) If COVID vaccination efforts will be hamstrung by the aforementioned issues with host nation further putting staff at risk. 

 

Now, I found that the world is round
And of course it rains everyday

Living tomorrow, where in the world will I be tomorrow?
How far am I able to see?
Or am I needed here?

Now, I found that the world is round
And of course it rains everyday

If I remember all of the things I have done
I’d remember all of the times I’ve gone wrong
Why do they keep me here?

Courtesy: Bee Gees – World (From the 1968 Album, Horizontal)


 

 

Inbox: Are there treatments that work? #HavanaSyndrome

Note: We received the note below from a Foreign Service employee who asked not to be identified. The sender gave us permission to publish this note as long as we remove potential identifying information related to specific posts and dates. We are wondering how many more out there similarly had to deal with a non-responsive  Bureau of Medical Services whose mission is “to promote and safeguard the health and well-being of America’s diplomatic community.” How many are in limbo about their condition? How many never heard from anyone about what the next steps should be?
–DS
I brought up my symptoms to the Health Unit (HU) where I was posted, and asked to receive an assessment for those symptoms even though my “attack” did not happen within the time frame specified in the Management Notice that went out via all HUs around the world. I was given the assessment, and several of my symptoms were identified as being similar to the Havana syndrome symptoms that began after my 26 months in Post Z (2008 – 2010): sudden onset of chronic insomnia, loss of smell, difficulty concentrating, and tinnitus/loss of hearing. The results of my assessment were sent to State/MED over a year ago, and I requested the HU at Post to indicate I would like a follow up. Since then I have had no communications from MED on this, despite having sent emails to various different persons in MED asking what the next steps were.  
I continue to have these symptoms. I was medevac’d from one post whose HU thought it was PTSD from Baghdad; I tried to explain I had been taking OTC sleep aids since 2009 in Post Z and that slowly but surely their efficacy had diminished. I thought I had just spontaneously developed the condition because of stress or pollution in Country Z. Unfortunately, the various symptoms have had a significant quality of life impact, both professionally and personally, and at this point I am very frustrated with State and MED for the lack of follow up. At the very least I would like to have additional assessments to see if my brain shows the patterns that our colleagues in Moscow, Havana, and Guangzhou also exhibit. I would also like to have available to me whatever resources are available from State to help work through some of these symptoms. Are there treatments that work? It would be great to get some relief.

 

 


 

 

Snapshot: Qualifying Injury Under 3 FAM 3660 – Compensation For Certain Injuries

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A section in the Foreign Affairs Manual was added on May 28, 2020 (see 3 FAM 3660 Compensation for Certain Injuries). It is based on Public Law 116-94, Division J, Title IX, section 901, where:
“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.”
3 FAM 3660 also includes definitions on who are covered employees, or covered individuals, what’s a “qualifying injury”, and the description of recognized and eligible qualifying injuries as of June 26, 2018.

3 FAM 3662  DEFINITIONS
(CT:PER-994;   05-28-2020)
(Uniform State/USAID/USAGM/Commerce/Foreign Service Corps-USDA)
(Applies to Foreign Service and Civil Service Employees)

Qualifying injury:  The term “qualifying injury” means the following:

(1)  With respect to a covered dependent, an injury listed in (3) below incurred

(a)  during a period in which a covered dependent is accompanying an 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;

(b)  in connection with war, insurgency, hostile act, terrorist activity, or other incident designated by the Secretary of State; and

(c)  that was not the result of the willful misconduct of the covered dependent.

(2)  With respect to a covered employee or a covered individual, an injury listed in (3) below incurred

(a)  during a period of assignment 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;

(b)  in connection with war, insurgency, hostile act, terrorist activity, or other incident designated by the Secretary of State; and

(c)  that was not the result of the willful misconduct of the covered employee or covered individual.

(3)  Recognized and eligible qualifying injuries, as of 26 June 2018, based on the University of Pennsylvania-identified criteria, include the following:

        • sharp localized ear pain;
        • dull unilateral headache;
        • tinnitus in one ear;
        • vertigo,
        • visual focusing issues;
        • disorientation;
        • nausea;
        • extreme fatigue;
        • cognitive problems, including difficulty with concentration, working memory, and attention;
        • recurrent headache;
        • high-frequency unilateral hearing loss;
        • sleep disturbance;
        • and imbalance walking.

3 FAM 3666  SECRETARY OF STATE COUNTRY DESIGNATION
(CT:PER-994;   05-28-2020)
(Uniform State/USAID/USAGM/Commerce/Foreign Service Corps-USDA)
(Applies to Foreign Service and Civil Service Employees)

a. Under Public Law 116-94, Division J, Title IX, section 901, the Secretary of State may designate another foreign country for the purposes of this section, provided that the Secretary reports such designation to the Committee on Foreign Relations of the Senate and the Committee on Foreign Affairs of the House of Representatives, and includes in such report a rationale for each such designation.

b. The Secretary of State may not designate an added foreign country or duty station for the purposes of providing additional monetary benefit pursuant to 3 FAM 3663 or 3 FAM 3664 for a qualifying injury to covered employees, covered dependents, or covered individuals under this section unless the Secretary of State

(1)  provides to the Committees on Foreign Relations of the Senate and the Committee on Foreign Affairs of the House of Representatives 30 days’ notice of the designation of a particular additional country or duty station and the rationale for such an addition; and

(2)  provides no such additional monetary benefit pursuant to 3 FAM 3663 or 3 FAM 3664  to covered employees, covered dependents, or covered individuals for a qualifying injury until the 30-day notice period expires, unless there is written agreement by both the Chair and Ranking Members of both the Committee on Foreign Relations of the Senate and the Committee on Foreign Affairs of the House of Representatives that there is no objection to proceeding with provision of such monetary benefit compensation in less than 30 days.


 

 

EEOC: @StateDept Improperly Dismissed Complaint Over EEO Counseling Process

Via EEOC:
Complaint Improperly Dismissed for Raising Matter Not Brought to Attention of EEO Counselor. The Commission reversed the Agency’s dismissal of Complainant’s complaint on grounds that it raised a matter that was not brought to the attention of an EEO Counselor. In dismissing the complaint, the Agency relied on Complainant’s failure to participate in the EEO counseling process, stating that the assigned Counselor attempted to engage Complainant multiple times by email and telephone, but was unable to do so. Complainant stated, however, that he did not receive an initial or final interview or counseling to attempt to informally resolve the matter. The assigned Counselor stated that she could not engage Complainant to conduct counseling, so she issued Complainant a notice of right to file a formal complaint, which he timely did. The Commission found that, contrary to the Agency’s assertions, Complainant raised the instant issues with an EEO Counselor even though no actual counseling sessions occurred, and timely filed a formal complaint when given the opportunity to do so. The Commission noted that it is the Agency’s burden to provide evidence to support its final decisions.

Ian G. v. Dep’t of State, EEOC Appeal No. 2019005132 (Jan. 8, 2020).

At the time of events giving rise to this complaint, Complainant worked at the U.S. Agency for International Development. On May 17, 2019, Complainant filed a formal EEO complaint alleging that the Department of State (hereinafter referred to as “the Agency”)2 discriminated against him on the bases of race (Asian), sex (male), national origin (Kashmir), religion (Islam), disability (Obsessive Compulsive Disorder (OCD) and Fibromyalgia), and reprisal for prior protected EEO activity when:

1. in March and April 2019, the Agency denied Complainant reasonable accommodation for the FACT course, and

2. in April 2019, the Bureau of Diplomatic Security (BDS) and the Agency subjected Complainant to hostile work environment harassment during the FACT course. Complainant alleged that he was repeatedly subjected to inappropriate “epithets and derogatory stereotypes.”

In his EEO complaint, Complainant stated “Counseling requested but not conducted.”

In a July 9, 2019 final decision, the Agency dismissed Complainant’s complaint pursuant to 29 C.F.R. § 1614.107(a)(2). The Agency reasoned that, “[Complainant d]id not go through EEO Counseling” because his allegations of discrimination were not first discussed with an EEO Counselor. The Agency stated that the assigned Counselor attempted to engage Complainant multiple times (via email and telephone) but was unable to do so. The Agency noted that the Counselor issued the Notice of Right to File (NORF) on May 15, 2019.

The instant appeal from Complainant followed. On appeal, Complainant stated that although he initiated contact with the Agency’s EEO office on April 10, 2019, no counseling or initial/final interview took place and he informed the EEO Counselor that he would be overseas for an extended period. Also, Complainant stated that he learned that the Counselor issued a counseling report on May 17 and June 12, 2019, and the Agency only provided him the second report initially. Further, Complainant stated that the Agency misapplied the standard for dismissal under 29 C.F.R. § 1614.107(a)(2), and failed to conduct EEO counseling as required under federal regulations. Complainant stated that he raised his issues with an EEO Counselor in a timely manner.

The EEOC reversed the Department of State’s final decision dismissing the instant complaint and remanded the matter to the Agency for further processing consistent with the decision it issued. Read more here.

US Embassy Dhaka: Persistent Staffing Gaps, Workload Stress, a Triple Stretch

 

In July 2016, the US Embassy in Bangladesh went on voluntary evacuation (U.S. Embassy Dhaka: Now on “Authorized Departure” For Family Members of USG Personnel). State/OIG conducted the inspection of U.S. Embassy Dhaka in Bangladesh from September 3, 2019, to January 28, 2020. The report released in June 2020 notes that “In 2016, following a terrorist attack in Dhaka, the Department decided to allow only adult dependents to accompany employees. Many American staff members told OIG this change made the embassy unattractive to Foreign Service employees with children.”
What OIG Found

The Ambassador and the Deputy Chief of Mission led Embassy Dhaka in a collaborative and professional manner. Staff described both leaders as energetic and approachable.

• The embassy had difficulty filling mid-level positions after the withdrawal of minor dependents following a 2016 terrorist attack. Many managerial positions had long staffing gaps that exacerbated workload pressures on the remaining staff.

• The Ambassador’s active outreach efforts advanced efforts to build political capital and goodwill. However, particularly given the staffing shortages throughout the embassy, the Ambassador contributed to the workload stress of embassy staff by not prioritizing demands he placed on employees to support these efforts.

• The Ambassador engaged extensively with Bangladeshi Government officials and led efforts by the international community to assist 900,000 Rohingya refugees who had fled Burma.

• Consular Section staff routinely worked long hours in an effort to manage a growing backlog of immigrant visa work.

• The embassy’s social media program did not comply with Department of State standards.

• The network cabling infrastructure in Embassy Dhaka’s unclassified server and telephone frame rooms was antiquated and did not comply with Department standards.

• Spotlights on Success: The Information Management Office created a tracking system for employee checks of the emergency and evacuation radio network that increased participation rates dramatically. In addition, the office created a travel request application that saved time for travelers and travel managers

[…]

At the time of the inspection, Embassy Dhaka had 139 authorized U.S direct-hire employees, of whom 66 worked for the Department of State (Department) and 73 worked for other agencies, including the U.S. Agency for International Development and the Departments of Defense, Justice, Health and Human Services, and Agriculture. The embassy also had 511 locally employed (LE) staff and 5 eligible family members. The embassy occupies two compounds, with the chancery having been built in 1988. The Department is planning to construct a new chancery and annexes during the next several years.

[…]

The embassy had difficulty in recent years filling mid-level positions. In the year prior to the inspection, several mid-level positions in different sections either had no assigned employee or had long gaps. For example, the embassy experienced a 30-month gap between Facility Managers, a 10-month gap between Public Affairs Officers, a 15-month gap between Information Management Specialists, a 34-month gap between the Management Section’s Office Management Specialists, and 24-month gaps in two of five Regional Security Office positions.

Excerpt from Embassy Dhaka’s response specific to the staffing gaps:

The Embassy appreciates mention of the staffing gaps identified on page three of the OIG Draft Report. However, the paragraph understates Post’s chronic and severe understaffing and its impact. In addition to the page three gaps, during the Ambassador’s tenure:

• The Front Office was short one OMS for seven months and had a four-month gap in the DCM position, filled only part of that time by an REA TDYer also serving as Acting Management Officer;

• Pol/Econ was without a Chief or Deputy for three months and the Acting Chief was also P/E Deputy, Econ Chief, and Labor Officer for three months. The incoming Refugee Coordinator broke his handshake causing gaps in that position;

• The Visa Chief position was vacant for 14 months; a ConOff position was vacant for five months; and the incoming Deputy Consular Chief who will replace her predecessor who departed during the October inspection has not yet arrived.

Additionally, Post was unable to fill numerous EFM positions in the Section due to the paucity of family members who chose to come to our then unaccompanied Post;

• The previous Management Officer curtailed in August 2019; the DCM recruited an REA officer to temporarily fill the position who was formally recalled to service in January 2020. The A/GSO EPAP departed in September 2019; her replacement is scheduled to arrive in summer 2020. The S/GSO left in May 2019; his replacement arrived four months later. The FMO arrived after a three-month gap. The ISO position has been empty since June 2019 and there is no replacement in the pipeline. Post has had no CLO since February 2019; the position was also vacant for 10 months until April 2018;

• The Deputy CAO – a second-tour Officer — filled the PAO position for 10 months; this was a triple stretch. The remaining two American positions were filled by Civil Servants in hard-to-fill positions; neither had served in a PD position or overseas.

With such substantial staffing gaps, during the tense and violent run up to national elections and the tumultuous aftermath, in times of heightened terrorist threat, and to support multiple VIP visits to Cox’s Bazar and the world’s largest refugee camp, some employees did occasionally work seven days a week. Post appreciated the strain on particular offices and officers and worked hard to burden share with our limited personnel resources. As is typical when new Chiefs of Mission arrive, the Ambassador accepted more invitations his first few months in order to promote crucial U.S. foreign policy objectives including the new Indo-Pacific Strategy, conduct high-profile advocacy over concerns for Bangladesh’s shrinking democratic space, press the Government of Bangladesh to address trafficking-in-persons issues, and protect human rights and voices of dissent in the aftermath of the hugely flawed national election. While the Front Office may not have been explicit in tying all outreach and travel to the ICS, the Ambassador was careful to accept engagement opportunities that furthered ICS objectives which are, as the OIG noted, displayed prominently throughout the Embassy. Further, the Embassy had and continues to have a strategic travel working group which develops quarterly travel schedules and plans.

OIG report says that in February the State Department agreed with Embassy Dhaka’s recommendation to return to fully accompanied status “which should help alleviate continuing staffing and related concerns by 2021, including by filling long-vacant EFM positions.”

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.

@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.

 

New USAID appointee’s transfer is “being greeted with all the excitement of a root canal”

 

 

FSGB 2020-008: Voluntarily Curtail Under Threat of Involuntary Curtailment or a Bad EER

 

Via FSGB 2020-008
Grievant is a tenured FP-02 Diplomatic Security Special Agent assigned as the Regional Security Officer (“RSO”) at U.S. Embassy [REDACTED] from June 2, 2017 until her involuntary curtailment on May 30, 2019. On July 3, 2019 she filed a complaint with the Department’s Office of Civil Rights (“S/OCR”) alleging sex, disability and age discrimination and reprisal for prior protected activity. In her S/OCR complaint dated July 3, 2019, she alleged 10 separate incidents of discrimination or reprisal by her rater, the Deputy Chief of Mission (“DCM”). She also alleged that at a May 8, 2019 meeting with the Ambassador (her reviewer), the rater and other senior officials, the Ambassador asked her to voluntarily curtail. When she refused, her rater informed her that her Employee Evaluation Report (“EER”) from April 16, 2018 to April 15, 2019 would contain a negative review statement. She ultimately declined to voluntarily curtail.
[…]
Grievant’s recitation of the facts – the underlying transactions – are contained in her agency filing as she has not yet filed her supplemental submission where she would have an opportunity to refine further her claims and remedies. In that filing, she provides extensive background chronicling allegations of sex and other forms of discrimination by her rater, the DCM. She also describes in detail four instances in which she invoked the displeasure of the Ambassador, her reviewer, for raising concerns that his actions or proposed actions constituted security risks. She then describes the removal of laudatory language in the draft rater’s statement and the circumstances surrounding her involuntary curtailment where she claims the DCM threatened to insert a negative reviewer’s statement into her previously drafted EER. She attributes both of these actions to retaliation for informing the DCM that she was initiating S/OCR proceedings.
From footnote, p.9:
“In stating I was going to seek EEO counsel and AFSA guidance related to discrimination I faced from the DCM, as I believe there were reprisal protections in place, I never envisioned I would face retaliation in the form of an involuntarily curtailment. It was only after I stated I was going to seek EEO counseling and AFSA guidance related to the DCM’s changes to the rater statement and then my refusal to voluntarily curtail under threat of involuntarily curtailment that a review statement which contained alleged performance issues materialized in retaliation for not acquiescing to the Front Office’s discrimination and reprisal.”
The FSGB Board issued the following order:
“… the Department’s Motion to Dismiss is denied in its entirety. Since the Department did not consider grievant’s claims on the merits, the Board remands the case to the Department for a decision on the merits. The Department should advise the Board of its decision not later than 45 days from the date of this order. Pending that decision, the Board retains jurisdiction of the case. Once the Department’s amended decision has been issued, grievant will have 60 days to amend her grievance appeal to the Board. In the meantime, the proceedings before the Board are stayed. The timeline for discovery will start anew when grievant files her amended appeal or advises the Board that no such amended appeal will be forthcoming.”
The FSGB files are not readable online; the files have to be downloaded first. Click here and locate FSGB 2020-008 from “Decision and Orders 2020” to read the full Motion to Dismiss order.