Denial of Reasonable Accommodation Found.
Complainant filed an EEO complaint alleging that she was discriminated against on the basis of disability when she was not provided with a reasonable accommodation of situational telework as her medical circumstances required. Complainant had been teleworking for several years, but her telework agreement expired. According to the record, Agency managers repeatedly asked Complainant to resubmit her request or provide additional information over a period of several months. Approximately six months after Complainant requested accommodation, the Agency informed Complainant that she could telework on Mondays, Wednesdays, and Fridays and would have a one-hour window to report her duty station to her supervisor on those days. The Commission found that the Agency discriminated against Complainant when it did not approve her request for situational telework. The Agency acknowledged that Complainant was a qualified individual with a disability. Complainant demonstrated that she needed to be able to telework when she experienced symptoms related to her condition, and these symptoms occurred without notice and were not limited to the three days specified. Therefore, the Agency’s offer, which was essentially the same telework schedule Complainant had before she requested reasonable accommodation, was not an effective accommodation. The Commission found that the Agency failed to prove it would have been an undue hardship to allow Complainant to telework when her medical conditions warranted. The Agency was ordered, among other things, to provide Complainant with the ability to situationally telework, restore any lost leave or pay, and investigate her claim for compensatory damages.
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.
On behalf of the @StateDept, we are humbled to receive the 2020 Public-Sector Employer of the Year Award from Careers and the DisABLED Magazine for our commitment to promoting diversity and inclusion in our workforce of over 76,000 employees. #WeAreStateDept pic.twitter.com/e93aaGAM7e
— Secretary Pompeo (@SecPompeo) July 28, 2020
Posted: 12:08 am ET
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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
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: