The following cases are extracted from the Foreign Service Grievance Board’s 2019 Annual Report dated February 2020:
The grievant in FSGB Case No. 2019-045 was assigned to a country where the Zika virus was widespread. When his wife became pregnant, she was medically evacuated from the post. When the pregnancy ended in a miscarriage, State/MED contacted grievant’s wife and instructed her to forward the results of genetic testing done on the fetus, and she complied. Grievant claims that the Department gained access to these records under false pretenses and shared them in violation of the Genetic Information Nondiscrimination Act (GINA). He has asked that State/MED destroy the records. The Department has asserted that the Board lacks jurisdiction over the claims, and that grievant’s redress is through the Privacy Act.
The grievant in FSGB Case No. 2019-036 is an employee of the U.S. Agency for Global Media (USAGM), formerly the Broadcasting Board of Governors. He was hired in a position that had a salary cap of FP-02. In 2012, grievant was assigned to a position designated FP1/SFS (Senior Foreign Service). Grievant claims that at the time it was agreed that a mechanism would be found to lift the cap so he could compete for promotion to the higher grade. In 2012, a personnel form SF-50 was issued showing a skill code change to effect the desired change in status. Subsequently, however, the Human Resources Office advised grievant that the conversion was done incorrectly and that he was not eligible for promotion until the issue was resolved. Grievant claims that despite repeated requests from him, nothing has been done.
The grievant in FSGB Case No. 2019-020 claims that the Department retaliated against him when he questioned three grant activities involving his predecessor on the grounds of conflict of interest and violations of the ethics regulations. He claims that, as a consequence, his responsibilities were reduced and, ultimately, he was asked to curtail from post.
FSGB Case No. 2019-008 involves four claims, one of which is being resolved separately. In the first three claims, grievant challenges the Developmental Areas of three EERs and a low-ranking statement. In the fourth claim, grievant contends that his security clearance was wrongfully suspended and revoked. Although his clearance has subsequently been reinstated, he claims that harm to his career resulted.
In FSGB Case No. 2019-052, the grievant was assigned to a country in which the ambassador was a political appointee of the previous administration. Grievant believed she enjoyed good relations with him, despite a number of difficult issues the embassy encountered. However, when the ambassador chose to leave post early, he advised grievant that he was requesting her involuntary curtailment. On the advice of colleagues, she instead opted for a voluntary curtailment. She claims that although she was told by post management at the time that she would not be receiving an EER, she was later given one for a four-month period. That EER was the basis for a low ranking. Grievant claims that the EER includes a number of falsely prejudicial statements as well as procedural errors.
The grievant in FSGB Case No. 2019-040 is a female officer who claims that an EER she received is the result of gender bias and retaliation on the part of her rater. The EER formed a basis for low ranking.
The grievant in FSGB Case No. 2019-039 was the subject of an investigation, on the basis of which the Department originally recommended a 45-day suspension. While the charges were pending, the grievant was reached for promotion; however, the promotion was withheld pending the close of the disciplinary proceedings. Grievant was advised at the time that if the charges were resolved satisfactorily, his promotion would be made retroactive. At the close of the disciplinary procedures a number of years later, the penalty was reduced to a letter of admonishment. However, the Department maintains that the White House currently will not forward recommendations for retroactive promotions to the Senate for confirmation. It therefore forwarded a recommendation for promotion in 2019, not to be retroactive. Grievant claims back pay and benefits to the time he was reached for promotion.
The grievants in FSGB Case No. 2019-021 are new FSOs hired while already living in the Washington, DC area. They claim that they were improperly denied locality pay while assigned to long-term training prior to their first overseas assignments.
The grievant in FSGB Case No. 2019-024 is part of a tandem couple. When she was assigned to her first overseas post, her husband was granted Leave Without Pay to accompany her. According to State regulations, his official assignment was therefore Washington, D.C. Grievant and her husband returned to Washington after that assignment, in transit to their next post, where she took home leave and annual leave and had four months of language training. Rather than considering grievant as being on TDY and thus entitled to receive per diem, the Department classified her as having the same status as her husband, a Washington-based assignment, in accordance with its Standard Operating Procedures (SOP) on tandem couples. Grievant contends this is a violation of Department regulations, which treat each member of the Service as individuals entitled to their own benefits. Approximately one year after the grievance was filed, the Department, with AFSA approval, modified the operative SOP to permit tandem employees in grievant’s circumstances to be on TDY and receive per diem; however, the Department maintains that the modification was not retroactive and, therefore, does not apply to grievant.
The following is excerpted from the Foreign Service Grievance Board Annual Report 2018. This is a good time to remind folks that while names/posts and identifying details are typically redacted from the Record of Proceedings (ROPs) routinely posted in the publicly available website fsgb.gov, once the case is filed in federal court, the records are usually publicly accessible and are unredacted (unless the case is sealed).
As described in last year’s report, USAID OIG had recommended that the grievant in FSGB Case No. 2012-057 be separated for cause. After two hearings, the Board approved the agency’s decision. The grievant appealed to the U.S. District Court for the District of Columbia. In a decision issued October 12, 2018, the court upheld the Board’s decision on cross-motions for summary judgment. The grievant has appealed to the U.S. Court of Appeals for the D.C. Circuit, challenging the District Court’s and Board’s construction of section 7(b) of the IG Act, which protects the confidentiality of employee informants.
In FSGB Case No. 2014-018, the grievant had requested a waiver of collection of a substantial overpayment of her deceased mother’s survivor’s annuity. The Department contended that she was not entitled to consideration of a waiver because the overpayment was made to her mother’s estate; under Department regulations, estates are not entitled to waivers. The Board concurred and grievant appealed. In a decision issued January 19, 2018, the D.C. district court found that the regulation denying waivers to estates was valid, but that the FSGB had erred in determining that the overpayments were made to the mother’s estate rather than to grievant as an individual. The court remanded the case for the Department and the Board to decide the request for the waiver on its merits. The waiver request is currently pending with the Department.
The grievant in FSGB Case No. 2015-016 filed a complaint in the U.S. District Court for the District of Columbia in 2017 against the Department and his former rater and reviewer requesting monetary damages related to the Board’s denial of his grievance. He had contested two EERs and a low ranking. The district court dismissed the complaint as untimely in a decision issued March 30, 2018. The U.S. Court of Appeals for the District of Columbia Circuit affirmed that decision on December 28, 2018.
The grievant in FSGB Case No. 2013-005 contended that he was deprived of certain benefits, such as promotion consideration, during a five-year assignment to an international organization. The Department found him ineligible for the benefits because his assignment to the organization was effected through a “separation and transfer” agreement, rather than a “detail.” The Board affirmed the Department’s decision and the United States District Court for the District of Colombia upheld that decision on appeal in a decision issued in 2016. The grievant had also appealed the Board’s decision in a second, related, case, FSGB Case No 2014-024, in which he had claimed certain benefits based upon his separation and transfer and subsequent reemployment with the Department. The Board dismissed his second grievance on the grounds of claims preclusion. In a decision issued March 14, 2018, the district court concluded that the Board’s decision was neither arbitrary and capricious nor contrary to law and dismissed his claims. The grievant appealed both decisions to the United States Court of Appeals for the District of Columbia Circuit, and that matter remains pending.
The grievant in FSGB Case No. 2017-014 was denied tenure and scheduled for separation from the Foreign Service. Consequently, the Department ordered her to leave her overseas post and assigned her to a position in Washington, D.C. The grievant filed a grievance with the Department challenging her transfer on several bases. The Department denied the grievance, and the grievant appealed to the Board. The Board denied all of grievant’s claims. It further found that, since no statute or regulation had been violated, it lacked jurisdiction to overturn an assignment decision. The grievant appealed the decision to the U.S. District Court for the District of the Virgin Islands, St. Croix Division. In a decision issued September 24, 2018, the court affirmed the Board’s decision.
Decisions were issued this year in two other cases filed by the same grievant, stemming from the same sets of circumstances but not involving appeals of Department or Board grievances. The grievant filed a case under the Equal Pay Act of 1963 in the U.S. Court of Federal Claims alleging gender-based discrimination in pay and benefits. She claimed that the Department discriminated against her by paying her less and providing her with fewer benefits than a similarly-situated male employee. The court initially dismissed the case, finding that it lacked jurisdiction because the same appeal was pending in another court at the time she filed. However, that decision was overturned by the circuit court and the case was remanded to the Court of Claims. The grievant also filed two identical complaints in the U.S. District Court for the District of the Virgin Islands, St. Croix Division, alleging discrimination and retaliation by the Department under the Age Discrimination in Employment Act. In both cases, the court dismissed all but one of the claims. The grievant also filed a complaint in the U.S. District Court for the District of Columbia alleging nearly identical discrimination and retaliation by the Department under Title VII of the Civil Rights Act of 1964. Therefore, the U.S. District Court for the District of Columbia has stayed its proceedings pending a decision in the U.S. District Court for the District of the Virgin Islands case.
An appeal of the Board’s 2017 decision by the State Department and USAID/OIG in another long-running case remains pending in the D.C. District Court following briefing of crossmotions for summary judgment in Civil Action No. 18-cv-41 (KBJ). As described in previous annual reports, the grievant in FSGB Case No. 2013-031 contested the decision to calculate his retirement annuity based on the application of a pay cap on his special differential pay that had not been applied when his salary was paid. In 2014, the Board initially upheld the agency’s decision. On grievant’s appeal, the district court in Civil Action No. 14-cv-1492 (KBJ) vacated the Board’s decision and remanded the case to the Board for further review. On remand, the Board in FSGB Case No. 2013-031R and No. 2016-030 issued a decision granting the grievant calculation and payment of his annuity that he sought. The Board denied the Department’s request for reconsideration of that decision. The Department and USAID/OIG jointly appealed the Board’s decision on remand to the district court in Civil Action No. 18-cv-41 (KBJ).
The 2015 Annual Report reported that the grievant filed an appeal of the Board’s decision in FSGB Case No. 2014-003 in Federal District Court, District of Colombia, claiming that the Department violated the Americans with Disabilities Act and Rehabilitation Act when it separated her. That appeal is still pending.
Via FSGB Case No. 2016-043:
The Department denies that grievant’s 2013 EER is factually inaccurate, falsely prejudicial, or biased, and cites a series of interviews with her supervisors, subordinates, and colleagues to dispute her contentions about the unfairness and inaccuracy of the EER. In response to grievant’s allegation that she was inadequately counselled on the deficiencies described in her EER, the agency contends, based on statements from grievant’s rating officer, that she was in fact counselled, both formally and informally, during the rating period. With respect to grievant’s claim that she was bullied, ostracized, and treated unfairly by the Embassy community, which she alleges triggered her trauma symptoms, the Department provided input from the Ambassador, grievant’s rating officer, and the General Services officer, all of whom disputed grievant’s allegations.
In response to grievant’s claim that she suffered from then-undiagnosed mental health issues (including anxiety, depression and trauma symptoms), the Department counters with quotes from grievant’s rating officer who stated that “from the time REDACTED arrived at post, she appeared unhappy and talked of being stressed.” The rater recalled that some of her stress “appeared to be related to prior postings (including REDACTED, REDACTED, and REDACTED),” and said that “upon arrival she talked to me about how stressful she had found the 6 months of FSI [Foreign Service Institute] REDACTED language training, and told me she urgently needed a break.” The Department was not persuaded that grievant’s poor performance resulted from the medical condition with which grievant was diagnosed after she left REDACTED. The Department put less credence in the medical statement grievant provided from her post-REDACTED therapist, stating “grievant has not provided medical documentation substantiating her alleged diagnosis. Nor does grievant’s counselor provide such documentation; the counselor merely states that ‘I believe PTSD is the primary diagnosis.’”
In all grievances except those involving discipline, the grievant bears the burden of proving that her claims are meritorious.3 This case turns on whether the grievant’s EER is falsely prejudicial, and, whether any documented underperformance can be attributed to the grievant’s post-REDACTED diagnosis of mental health disorders. The Board notes that the record in this case is, unfortunately, sparse with respect to a diagnosis of grievant’s mental health issues. While the Department is correct in noting that grievant’s counselor noted only that “I believe that PTSD is the primary diagnosis,” the Department provides no opposing medical information whatsoever, relying solely on the observation of grievant’s Foreign Service colleagues in REDACTED. Grievant’s licensed mental health counselor did in fact provide a detailed listing of grievant’s problems in REDACTED, and concluded that grievant suffered mental health disorders as a result thereof. We note that grievant’s counselor saw the grievant regularly over a period of more than a year. On balance, therefore, the Board is obliged to find grievant’s medical evidence preponderant. After careful examination of the ROP, the Board concludes that grievant’s 2013 EER cannot stand, because her performance during that period was likely influenced by her depression, anxiety, and trauma symptoms. We base our conclusion largely on the detailed statement submitted by grievant’s Licensed Professional Counselor (LPC), with whom grievant had at least 38 therapy sessions between April 2014 and August 2015, and to whom grievant was referred by a prior therapist who had diagnosed her with anxiety, depression, and trauma symptoms. In the Board’s view, this statement, written by a mental health professional who knows the grievant well, is entitled to more weight in the decision process than that of grievant’s rating and reviewing officers, or her colleagues at post. We also note that the Agency provided no contradictory medical opinion, or any information of a medical nature.
In her August 18, 2015, statement, grievant’s LPC states, in relevant parts:
She was referred to my center, the National Center for the Treatment of Phobias, Anxiety, and Depression in Washington DC by a previous therapist who had diagnosed her with anxiety, depression, and Trauma Symptoms. She also sees REDACTED , MD for medications at this center. I believe PTSD is the primary diagnosis and the depression and anxiety are symptoms of the PTSD. REDACTED described primitive and unsanitary living conditions that caused her to feel unsafe. She reported unsanitary water in her apartment, unsafe electrical problems, and other living conditions that prevented sleep, peace and support. While in the workplace, she felt she was targeted, bullied and marginalized. Because of the combination of insecurity in her home, insecurity in her workplace, and the stress of an extremely stressful foreign environment, began to suffer from PTSD symptoms. She became depressed and hopeless, developed panic attacks, difficulty sleeping, developed nightmares, and generalized anxiety.
It is my understanding that her evaluations from this period faulted her for having strained relations with her subordinates, program participants, and peers in Washington, as well as difficulty making contacts in the REDACTED media and discomfort speaking to media on the record. I did not observe REDACTED during this period, so I do not have an opinion on the accuracy of these criticisms, but, if true, each would in my opinion be related to the various symptoms of her previously-undiagnosed and untreated anxiety, depression and trauma symptoms.
I do not believe a patient can work with very seasoned therapists or psychiatrists and hide character issues as described in the accusations towards REDACTED. However, I do believe that it would have been difficult, if not impossible, for REDACTED , while suffering the effects of PTSD, to maintain a high level of diplomacy, an ability to connect well with co-workers, and to utilize PR skills to connect at work well with the media.
Nightmares, panic attacks, depression, extreme fear, feelings of hopelessness and helplessness and not feeling respected or supported would prevent most people from working at a level of excellence which, to my knowledge, had been true for REDACTED before her REDACTED posting. I believe REDACTED ’s behavior while in REDACTED was mischaracterized at most and misunderstood at the least. This is my opinion based on working with many patients who suffer from trauma-related symptoms.
We find the foregoing LPC statement to be a detailed professional observation, based on relatively long-term (at least 16 months’) observation of grievant, and thus accord it more weight than we do the statements offered by the Department from non-medical providers (her rater, the General Services officer (GSO), the Ambassador, and grievant’s subordinates). While the statement does not contain a definite diagnosis of grievant’s symptoms, we note it is from a licensed medical professional, and is countered by the Department only with comments from non-medical co-workers and colleagues.
THE BOARD’S DECISION:
Grievant has shown by preponderant evidence that she suffered from the effects of then undiagnosed mental health conditions including anxiety, depression, and potential Post Traumatic Stress Disorder (PTSD) during her tour in REDACTED and accordingly, her Employee Evaluation Report (EER) for 2013 must be expunged and replaced in her Official Personnel File (OPF) by a standard gap memorandum. Grievant has shown that she suffered from these conditions and that they affected her performance in ways that contributed to the negative statements in her EER. If she is not promoted by reconstituted Selection Boards for the years 2014 -2017, her Time in Class shall be extended by one year.
One more: “as a general matter, an EER is inherently false, even though it accurately describes an employee’s performance, if that poor performance was the result of the employee’s serious illness.”
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Posted: 1:50 am ET
The 2016 Annual report of the Foreign Service Grievance Board only mentions the Aragon v. Tillerson case in passing as follows:
Daniel P. Aragon, a former Foreign Service career candidate at the Department of State, filed an appeal on January 29, 2016, with the District Court for the District of Columbia, challenging the Board’s denial of his appeal in FSGB Case No. 2014-034. Mr. Aragon had contested two EERs and the withholding of tenure and involuntary separation that flowed from those EERs.
This case was filed in 2016. Per Federal Rule of Civil Procedure, the Court substituted as defendant the current Secretary of State,Rex Tillerson, for former Secretary of State John Kerry.
Chief Judge Beryl A. Howell of the U.S. District Court for the District of Columbia has harsh words for the Foreign Service Grievance Board (FSGB) on this specific case:
The plaintiff, the Foreign Service, and American taxpayers have invested heavily in the plaintiff’s career as a Foreign Service officer, and the FSGB does a disservice when it renders a decision that ignores significant parts of record and fails to connect rationally the underlying facts to its ultimate conclusion. This is what the FSGB did in finding that the May and November 2013 EERs were not falsely prejudicial. For these reasons, the FSGB’s decision is vacated with respect to its conclusion that these EERs were not falsely prejudicial, and this action is remanded to the FSGB for further proceedings consistent with this Memorandum Opinion.21
Quick summary of the case:
The plaintiff, Daniel Aragon, served as an entry-level Foreign Service Officer with the U.S. Department of State for five years, until he was denied tenure and involuntarily separated in 2014. The reason for the tenure denial arose during the plaintiff’s second overseas assignment, when the plaintiff was responsible for supervising an employee, whose undisputed pattern of insubordination, tardiness, abuse of leave policies and performance issues would, in many work environments, warrant termination of employment. Instead, the plaintiff’s management efforts, which were ultimately successful, to bring this employee into compliance with basic workplace rules, has led to the plaintiff’s own termination from a job he “love[s].” AR at 354.1
The plaintiff filed the instant action against the Secretary of State, in the Secretary’s official capacity, after the State Department denied his grievance contesting the performance evaluations on which the tenure denial was predicated, and the Foreign Service Grievance Board (“FSGB”) upheld the State Department’s decision.2 Alleging that the FSGB’s decision was “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law,” in violation of the Administrative Procedure Act, 5 U.S.C. § 706(2)(A), the plaintiff seeks, inter alia, an order directing the State Department to remove from his personnel file the two performance evaluations on which the denial of tenure was predicated, Compl., Relief ¶ 3, ECF No. 1; an order rescinding the tenure decisions predicated on those evaluations, id.; an order directing the State Department to reinstate the plaintiff retroactively, with back pay and benefits, id. ¶ 4; and an order directing the State Department to place the plaintiff in the same promotional class he would be in had he received tenure in the winter of 2013, id. ¶ 5. Pending before the Court are the plaintiff’s motion for summary judgment, see generally Pl.’s Mot. Summ. J. (“Pl.’s MSJ”), ECF No. 12, and the Secretary’s cross-motion for summary judgment, see generally Defs.’ Mot. Summ. J. (“Defs.’ MSJ”), ECF No. 14. For the reasons set out below, the plaintiff’s motion for summary judgment is granted in part and denied in part, without prejudice, the Secretary’s cross-motion for summary judgment is denied without prejudice, and this action is remanded to the FSGB for further proceedings.
What the what? Excerpt from court’s opinion:
[T]he record shows that the CPS [cultural program specialist FSN] had an “apparent pattern” of abusing sick leave and would disappear from work for extended periods of time. Id. at 42; see also id. at 335 (describing the manner in which the CPS “took sick leave immediately before or after a block of annual leave[, which] suggest[ed] that she was abusing sick leave in order to augment her annual leave”). This apparently lax office culture was extant before the plaintiff’s arrival, leaving him with the task of changing that culture to ensure that employees, such as the CPS, on the U.S. Government payroll complied with the most basic work performance rules of coming to work on time and providing notice of absences.”
Lip service to evidence
The FSGB paid this evidence lip service in the section of its decision summarizing the plaintiff’s claims, see id. at 405, but the Board did not refer to it, let alone grapple with it, in deciding that the AFI concerning the counseling session was not falsely prejudicial for completely omitting any reference to the events giving rise to the counseling session or the context, in which even before the plaintiff’s arrival, the Dubai office had such deficient management that the CPS was able to develop and engage in a pattern of poor work behavior.
Fails to connect rationally …
That prior agency management in Dubai allowed such poor work habits to persist likely made the plaintiff’s effort to enforce the most basic workplace rules more difficult and makes it all the more impressive that the plaintiff was, apparently, ultimately successful in reining in the CPS’s behavior. See, e.g., AR at 42 (noting that after the plaintiff spoke with the CPS about her “apparent pattern of abusing sick leave, . . . there were no further incidents of suspected leave abuse during the rating period”). As the FSGB itself has noted, a supervisor will “almost inevitabl[y]” have “a difficult relationship” with an employee when the supervisor “is trying to effect changes” in the employee’s behavior. FSGB Op. 2006-052 at 13.
Read in full below:
Posted: 1:53 am EDT
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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.
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).
Posted: 11:15 am PDT
Updated: July 8, 5:28 pm PDT
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Every spring, our Foreign Service folks get a stressful season added to their lives. It’s called the EER Season. It’s when most people in the Foreign Service must do their Employee Evaluation Review, their annual report cards. It’s like doing your own tax return. It’s painful. People hate doing it. But it must be done, and done well, if folks want that promotion.
One FSO once quipped about the wisdom of “scheduling EER due dates at the same time as your tax returns; at least you’re combining as much pain and suffering into as short a time as possible.” Another describes it as “a period of several weeks during which the entire service withdraws to semi-hibernation in their offices to produce and push around the mountain of paper that is the annual Employee Evaluation Review.” The Daily Demarche calls it the Creative Writing Season at the State Department, writing, “It is only with slight exaggeration [they] I say some reports use phrases like “when Dick is not walking on water he is busy turning it into wine.”
There are tips and tricks online on EER preparation, see this and this, both written by FS-bloggers, who by the way, are no longer blogging. Also read this old post from Life After Jerusalem, it’ll crack you up.
An old adage is repeated in the Foreign Service Journal: “The EER system doesn’t work, so all we can do is gossip to keep bad people from getting good jobs.”
We’ve heard it said often enough that the EER gets you the promotion, but your corridor reputation gets you your next job. Is that still true?
In a perfect world, the performance evaluation report should be the most useful tool in getting an individual, as they say, on the right bus. But that’s not the case in the Foreign Service. The Foreign Service where the entrance requirement is proudly based on merit, actually bases its assignment process on who you know, and what’s often called “corridor reputation,” instead of ability and talent.
So it was only a matter of time… and bang! This happened.
We received the following note:
As I have worked as an FSO for the better part of a decade, I have experienced a lot of different types of employees. Like many others, I have often wondered how certain people got promoted and why certain others did not. I have pondered the ridiculousness of the current EER system and its unnatural obsession with style over substance. How many times do I really need to roll it back to step 4 to make a comma edit and should that really sink my chance at a promotion? I have wished that I would have known going in that my new boss would be horrible, and I have wished I could tell the world by boss was awesome.
Eventually, I came to the conclusion that Department needs a place to discuss the performance of people. It has to be outside official channels and done in a way so others feel like they can comment without reprisal. After this realization, a long period of denial, and more than a few sleepless nights, the site http://www.corridorrep.com was born. It is limited only to people with a state.gov email address and does not pretend to be any type of official or statistically valid tool. It is just a forum for openly discussing the performance of others. The hope is that by providing visible access to one’s corridor reputation, the good performers get publically recognized and the not so good ones know where they can improve. Is this risky? Yes. Will people be offended? Probably. Will I get sued? Maybe. Is it needed? I think so.
Regular folks who get frustrated long enough with the process long acknowledged to be broken will occasionally roll the dice.
The site’s stated goal is to rate 5,000 employees. It has 26 ratings right now. We are unable to read the full reports but one of those “Recently Liked” under “Poor Performer” starts with “It was the longest tour of my life…” Another one under “Officer Bob” starts with “It was a dark and stormy…”
In order to use the site, users “must provide” their state.gov email address. “This is only used to ensure that Department employees can access the site. Your confirmation email will be sent to this address and once you confirm your account none of your activity will be traceable to it.” The site says that registration is limited to U.S. Department of State employees at this time, but may be extended to include other agencies as determined by the site administrator.
Note: Thanks for all your tips. Since the owner of the LLC who operates this new site has not self-identify as site administrator of CorridorRep.com, we will not identify that individual in this blog at this time. We have reached out to the site administrator and will update when we hear more.
Via Burn Bag:
“I wonder if the EERs* written at Embassy Saigon in 1973 contained as many self-congratulatory declarations of enduring accomplishment as those penned at Embassy Kabul in 2015.”
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(image via giphy.com)
EER — Employee Evaluation Report
Correction: previous burn bag referenced Kabul in 1975. Author meant 2015.
We recently got a reminder in our “burn bag” about EERs. Basically, a reminder that it’s a new year, so there will be Employee Evaluation Reports to do this year, just like every year.
There used to be lots of EER talk on the blogosphere prior to April. But not so much this year. Maybe it’s still early but … anyway, if you’re not terribly familiar about EERs, they’re like taxes and root canals, not pleasant by any stretch of the imagination but gotta be done.
In any case, a whole bunch of folks now write their own EERs. We wondered briefly if anybody ever give themselves a poor evaluation — such as “this officer take on so much work he makes everyone looks bad;” or “this officer takes mentoring at a new level, acting like a mother hen to new chicks just hatched that she should be promoted at the earliest opportunity.”
Now, you may not know this but this is all very, VERY serious business. The future of the new global order hinges on this. Imagine if our future best Paranoidistan negotiator could not get promoted to fulfill his/her destiny because his/her boss did not know how to make him walk on water? Um, excuse us, because he/she did not know how to make himself/herself walk on water in DS-1829 or DS-5055 or whatever the form is called these days. Imagine destiny denied due to bad writing. Yes, that would be awful. Still, just between us, we happen to think that something drastic needs to be done about this process. Because — see, how can everyone all be performing in an absolutely outstanding manner? Even that screamer. Even that micromanager. Even that arse-kiss ….
And that’s not all — apparently “a misplaced comma or misused word can [snip] rile a promotion panel to the extent that it passes over the employee for promotion.”
So you work your arse off and is absolutely showing potential for the next higher responsibility but because of a misplaced comma on your EER, the promotion panel toasts you crazy? Like — yo, misplaced comma, you’re so busted! They’re also the comma police?
Holy mother of goat and all her crazy nephews!
Pardon? Oh, housemate wants to know what planet have moi been living in the past 30 years. After all people have been complaining about this like forEVER, so he’s fairly sure that nothing will be done about this. Why? ‘Cuuz — during the last go-round, they reportedly made the performance appraisal more efficient and user-friendly (oh, hello ePerformance, you wonderful bureaucratic nightmare!). There’s no mention on making the process effective; just efficient. Something you gotta love!
The EER issue makes a routine appearance on the trade publication. One September issue of the Foreign Service Journal had something on this. One of the letters (Through the Looking Glass, September 2009) was a comment on a previously published article on the journal (EERs: The Forgotten Front in the War for Talent). The letter writer whose name was withheld by request is a Foreign Service employee at an unnamed post in Africa. That in itself is quite telling:
This spring, I proofread many Employee Evaluation Reports and did not see a single negative statement — even in the one for my office’s former Office Management Specialist, whom I’ll call “Janet.” Janet was assigned to cover the phones in our busy office, but spent half the day in the hall chatting with friends. When she was at her desk, surfing the Web was one of her prime activities. She worked with us until the head of our office told the human resources director at post that he never wanted to see her again. HR moved Janet to another office, where she has continued to be unmotivated and uncaring.
Janet’s EER rater joked to me that he’d had to include her participation in a local 5K race as an achievement because it was so difficult to come up with anything good to say about her work. Apparently, being nice is much more important than being truthful.
After only one year with the Foreign Service, I’ve come to a depressing conclusion: because FS personnel aren’t actually evaluated, we are just like Soviet factory workers — lacking any incentive to excel.
Soviet factory workers, huh? A little outdated and a tad harsh, but we understand the sentiment.
A more recent Speaking Out piece, also in the Foreign Service Journal calculated the hours spent on EERs for each employee at 15 hours and the cumulative hours spent on EERs by the entire agency at 180,000 hours a year; the equivalent of 22,500 workdays, 61 calendar years or 90 working years. You can read yourself scared silly about that on the FSJ September 20012 issue [See Overhauling the EER Process).
The FSO who wrote the article helpfully points out:
We need a system that significantly reduces the amount of time and energy it takes to produce a review, freeing up that time to pursue the important work of diplomacy and development. It should also accurately and fairly evaluate employees and, without overstating their accomplishments, produce EERs that enable promotion panels to identify high-performing employees.
Please do not think that there are no great workers out there. There are. And it is a disservice to them and all who spend far too much time making things work and doing things right (as oppose to just doing things) not to have an effective performance evaluation system. The heart of the problem is that supervisors with some exceptions lack the spine to do the right thing when it comes to performance evaluation. They’d rather let things slide than document a bad performance (let the next guy deal with dat) or conduct real counseling, cuz that can get complicated, and you might end up in the grievance board, or some elsewhere place you don’t really want to be. Or if they have the spine and they don’t play the game, their ratees suffer as a consequence since others then play the inflationary board game much better. See the problem there?
The performance review, if you look under the rug is an exercise in artful rhetoric.
Did you hear about that one where Front Office executives gave a Section Chief a glowing EER complete with fireworks, only to be contradicted with a firehose by an inspection evaluation review from the OIG? The Front Office rater and reviewer talked about ratee as a big deal mentor and leader, and almost everyone else at post unfortunately, told the OIG inspectors the exact opposite. As you might imagine, the case ended up as part of the Grievance Board statistics.
On a related note, over at Foreign Policy (registration required), commenters on Nicholas Kralev’s recent piece had some fun:
Geo Frick Frack: “… The successes are exaggerated, and the failures are obscured or explained away. Yet most have wonderful evaluations and the occasional award….”
SKB: Go ahead and give yourself a Franklin Award. This round is on me. 😉
Geo Frick Frack: Thanks. I’ll repay the favor with a Group MHA.
Anyway — in keeping with belt tightening and the “Bank of Afghanistan R Us” spending bandwagon, let’s introduce one money saver here — what if EERs become “Energy Expended Ratings” without the calorie counter in a pedometer? Wouldn’t it be perfectly normal and acceptable to rate the energy expended in a 5K race, surfing the web, etc. ? Just think — no more excessive time wasted on drafting, revising, reviewing, beautifying, soliciting global input from friends on the other side of the world on EER texts, or editing, finalizing, what have you, tinkering with these reports.
Imagine the “personhours” saved! Sorry, we get an itch everytime we hear “manhours” so we try to avoid using that term.
Another possible money saver? Just do away with convening the promotion boards. Why not just let folks toss out colleagues and bosses in an “EER Survivor” reality show via BNET? Something like “outwit, outplay, outlast.” A real 360 degree feedback without those wacky questions; and even wackier answers from BFFs and uber friendly colleagues and subordinates.
You think this would really be more difficult than the process that is now in place? Um, don’t know. We will executive produce it if you want to try it …
What about make-up artists?
What? Oh, no, no! The EER Survivor Reality Show has no line item for make-up artists. All wrinkles will be up close and personal; no airbrushing allowed for mediocre performance, either. Of course, the reality show will also have a “classified” or at a minimum, “SBU” (sensitive but classified) viewers’ ratings so members of the media, bloggers in pajamas and nosy taxpayers will not be able to use it as a date-night excuse. But the good news is — it’ll be available for viewing at the cafeteria!
How about it — these are great money savers and fantastic ideas, if we may say so ourselves? Anyone? ANYONE out there?
BTW, one of our former bosses wanted to become ambassador one day and declined the invitation.
But.. but… boss, you’ll be on tee-vee!!
P.S. No EER was harmed in the writing of this blog post.