FSGB Annual Report 2018: Judicial Actions Involving Board Rulings

 

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.

#

Advertisements

Is this how you keep a potentially embarrassing case away from public eyes?

 

Via FSGB 2018 Annual Report:

In FSGB Case No. 2018-001, an FS-01 appealed a 3-day suspension on a charge of Conduct Unbecoming. The charge arose from allegations that he facilitated the inappropriate hiring of a former political appointee. Grievant contends that, although he was the hiring official, all of his actions were at the direction of senior bureau staff and in consultation with the bureau’s administrative staff. The case was settled and withdrawn.

*

FSGB Case No. 2018-001: On March 1, 2018, the Foreign Service Grievance Board received a Notice of Withdrawal from grievant’s attorney, {Attorney’s Name}, stating as follows: “Grievant, {Grievant’s Name}, through counsel, {Attorney’s Name}, hereby withdraws his grievance appeal filed on January 3, 2018, with prejudice. The parties have settled their dispute.”  The Notice of Withdrawal has been entered in the record of proceedings, and the record is now closed.

We understand that because this case was settled and withdrawn there is no actual FSGB decision in the case; thus, there is no publicly available record of the case. Presumably State/HR/Grievance has the paper trail and the finer details, but for now, because the case was settled we won’t know who is the ex-political appointee, which bureau was involved, which senior bureau … er staffers were responsible, or the terms of the settlement.  One wonders if the State Department settled this case because it did not want the details in public view, or if grievant has the “receipts” that could get higher ups in a specific bureau in trouble?

via tumblr.com

#

Snapshot: Foreign Service Grievance Board Annual Report 2016 – Statistics

Posted: 1:19 am ET
[twitter-follow screen_name=’Diplopundit’]

 

Via fsgb.gov

#

Related posts:

 

 

Judicial Actions Involving Foreign Service Grievance Board (FSGB) Rulings in 2015

Posted: 12:15 am ET
[twitter-follow screen_name=’Diplopundit’ ]

Below are three appeals of FSGB decisions that were filed in the District Court for the District of Columbia in 2015 and a few other cases currently pending in court. All extracted from the 2015 FSGB Annual Report:

  • In May, Paul Fritch appealed the Board’s decision in FSGB Case No. 2013-005. The circumstances of that case, as with two other appeals filed by Mr. Fritch with the Board, revolved around his transfer to the Organization for Security and Cooperation in Europe (OSCE) for seven years, and reemployment by the Department of State. Mr. Fritch’s district court appeal claims that the Department, affirmed by the Board decision, denied him benefits upon his return to which he was entitled by law, including promotion opportunities, housing expenses, lost contributions to his Thrift Savings Plan account, and position seniority. A decision is pending. (Also see  How many people should be put through a wringer before, oh you know …. and  Secondments to international organizations and promotions? Here comes the boo!).
  • In November, SharLyn Foo appealed the Board’s decision in FSGB Case No.2014-018, described above under financial cases resolved last year. The Board affirmed the Department’s denial of a waiver of repayment of annuity payments in excess of $300,000 deposited into Foo’s deceased mother’s account over more than a decade. A decision is pending.
  • Also in November, La Rufus Mitchell filed an appeal of the Board’s decision in FSGB Case No. 2014-003. Ms. Mitchell claims that the Department violated the Americans with Disabilities Act and the Rehabilitation Act when it separated her for not having passed the timed running test required for Diplomatic Security Agents. The Board had upheld the Department’s decision. (See the case description under Separation cases, above, for greater detail.) A decision is pending.
  • Appeal to the Foreign Service Labor Relations Board (FSRLB) | In October, the Department of State filed an appeal to the FSRLB of the Board’s decision in the implementation dispute filed by AFSA in FSGB Case No. 2014-028. The FSGB found that the Department had violated negotiated Procedural Precepts when it failed to pay Meritorious Service Increases (MSIs) to members of the Foreign Service in 2013. The Department has alleged that the Board relied on erroneous facts and factual premises not in evidence, and disregarded the express terms of the collective bargaining agreement when it based its decision on past practice. (See Implementation Disputes, above, for greater detail.) Also see Burn Bag: @StateDept announces its disappointment … 👀 OMG! It’s nice to feel valued!

#

FSGB 2015 Annual Report: Grievance Processing Reduction — From 41 Weeks to 34 Weeks

Posted: 12:08 am ET
[twitter-follow screen_name=’Diplopundit’ ]

 

The Foreign Service Grievance Board has released its 2015 annual report. Excerpts below:

The FSGB, as the primary appeals tribunal for Foreign Service Officers, is in many cases the tribunal of last resort for a wide variety of disputes that arise in the context of employment in the Foreign Service. Although the Board’s decisions may be appealed to the Federal District Courts, such appeals are rare. Therefore, the Board holds sway over decisions that may not only adversely affect Foreign Service careers but that may be fatal to such careers.In its 2015 report, the FSGB says that it has “achieved significant progress in reducing the timelines from the inception of the appeal (or the filing of the grievance with the Board) to the issuance of the final decision. Taking into consideration certain anomalies (cases settled, withdrawn, etc.), the grievance processing time was reduced from an average of 41 weeks in 2014 to 34 weeks in 2015.”
[…]
The Board is constantly mindful that external trends and societal changes that affect the Foreign Service have a bearing on dispute resolution. In that regard, we have encouraged internal discussion and on occasion invited outside experts to make presentations on topics that we consider relevant to the Board’s core functions. For example, this past year the Board held a panel discussion on the impact of social media on diplomacy, including such issues as expectations of privacy and security of communications in a much more active cyber environment. We also invited four distinguished individuals to engage the Board in a wide-ranging discussion on disability and its impact on the Foreign Service. The discussion ranged from a report on what the Department of State is doing to provide accommodations for various employees who are disabled to the diagnosis and treatment of PTSD. These issues, along with a myriad of other conditions caused by service in stressful, dangerous and unhealthy posts abroad, have significant impact on behavior and performance and are often addressed by evolving laws and regulations; they are therefore relevant to the overall mission of the Board. My expectation is that the Board will continue to encourage discussion of issues that influence Foreign Service careers, and that will enlarge the Board’s understanding of the growing complexities in the practice of diplomacy and the legal framework that surrounds it.

Some of the notable 2015 FSGB cases:

  • One complex case arose from the circumstances following the September 11, 2012, attack on an American diplomatic post in Benghazi. The reviewing officer of a senior DS Agent was placed on administrative leave during the last four months of the rating period. No communication was allowed between the rated employee and reviewer during that time. Additionally, the rated employee was subsequently responsible for implementing many changes in procedures that had been in place under the reviewer who was placed on leave. The employee assumed that the person acting in the original reviewer’s stead would provide the reviewing statement for his EER. However, the Department determined that his former reviewer would write the reviewing statement, since that officer had not been formally reassigned and was familiar with grievant’s performance during most of the rating period. Grievant claimed that this decision, along with the Department’s decision to assign no reviewer for his subsequent Interim EER, contrary to grievant’s expectations, disadvantaged him in the highly competitive promotion process at the senior levels. The Board found that although the Department had contravened the regulations regarding reviewing officers, grievant, who had been recommended for performance pay, had not demonstrated actionable harm, and the grievance was denied. FSGB Case No. 2015-022. (This case does not appear to be available at fsgb.gov).
  • A second grievance illustrated an issue involving informal counseling that occurs with some frequency in cases that end up at the Board. Grievant, an untenured officer, challenged several EERs and a low ranking on a number of grounds, among them that he had not previously been counseled on deficiencies identified in his EERs. After a thorough review of the record, including contradictory statements by the employee and raters, the Board found that, with one exception, grievant had been counseled, albeit informally, but not in writing on the official counseling form as provided by Department regulations. In accordance with Board precedent, the Board found that such informal counseling was acceptable, although not the best practice. FSGB Case No. 2013-046. (PDF)
  • The appeal with the largest sum at stake was filed by the daughter of a deceased Foreign Service Officer. The Department sought to collect over $300,000 in annuity payments that it had continued to deposit to the account of the deceased’s wife (the grievant’s mother) for over a decade after the mother’s death. The grievant alleged that her mother had told her that the payments would be continued, and that she should use them for the benefit of her minor nephew, whose father had also died. When the Department requested repayment, grievant asked for a waiver. The Department denied the application for waiver on the basis that it (the agency) was prohibited by regulation from waiving repayment of overpayments made to an estate. The Board affirmed the Department’s findings. The grievant has appealed the decision to district court. (See Judicial Actions Involving Board Rulings, below.) FSGB Case No. 2014-018. (PDF)
  • In a second, unusual, case, the grievant was a Department employee who had filed the first Foreign Service grievance in 1972. At that time, he was due to be separated as a result of expiration of time in class, and would have received no retirement benefits. The grievant protested that the separation was really due to policy differences with his superiors. During the proceedings, grievant was separated and hired into a Civil Service position. He ultimately won the grievance, but was never reinstated in accordance with the remedies granted. Grievant requested that the Board negotiate a revised annuity based on the original grievance decision. The Board found that the passage of over four decades since the original grievance made the new grievance untimely, and it dismissed the case. FSGB Case No. 2014-042. (Also see FSGB Recognizes Grievant’s “Enduring Dissatisfaction” With @StateDept’s 40 Year Old Grievance Case — Where’s the Medal?)
  • A third case involved both a two-and-a-half-year delay in proposing discipline and post-traumatic stress disorder (PTSD), an issue that has arisen with increasing frequency in grievances. The grievant was a DS Agent who allegedly suffered from PTSD following an earlier military deployment to Iraq. The Department charged that grievant failed to inform it about the PTSD during the hiring process, and that he was taking prescription medication without notifying DS as required by the Foreign Affairs Manual (FAM). The Board sustained both charges but did not sustain two of the specifications under one of the charges, and remanded to the Department to reconsider the penalty. The delay was not found to have harmed or prejudiced the grievant in this case. FSGB Case No. 2014-020 (PDF).
  • One case involving the appeal of an assignment was closed this year. Grievant had been an FS-02 officer for several years when he was voluntarily separated and transferred to an international organization. He remained at the international organization for seven years, where he held a senior position in his final years. Grievant contested his assignment to an FS-02 position when he returned to State. However, he had also filed a whistleblower reprisal complaint with the Office of Special Counsel (OSC) involving the same issues. Grievant withdrew his grievance appeal in order to pursue the OSC complaint. FSGB Case No. 2014-025. (Also see  How many people should be put through a wringer before, oh you know …. and  Secondments to international organizations and promotions? Here comes the boo!).

Some unresolved cases at the end of 2015:

  • Grievant, an untenured DS Agent who spoke fluent Chinese, applied for an upgraded security clearance pursuant to a pending assignment to China. In mid-2013 he was informed that his Top Secret clearance was being suspended based on issues surrounding his personal conduct and his foreign preference and influence. The Department also suspended his law enforcement duties and LEAP, assigning the Agent to unclassified duties. Although the Agent was recommended for tenure the same year, tenure was withheld pending resolution of the security issues, and he was low ranked. Grievant challenges these actions on procedural grounds. FSGB Case No. 2015-034.
  • USAID sought to suspend a Management Officer assigned to a conflict zone for negligent contracting actions that it alleged led to the costly collapse of a roof on a new USAID building. The collapse took place in 2009; discipline was proposed in early 2013. As of mid-2015, the agency had not yet issued a final decision on the discipline; however, it was withholding the grievant’s promotion, recommended in 2013, pending that decision. The grievant challenged the agency’s action as untimely and also claimed as a defense that his alleged negligence was due to his PTSD. The case appeared to be near an agreed resolution last year when a second investigation of the grievant halted negotiations between the parties. FSGB Case No. 2015-020.
  • An employee posted to South America with USAID stopped on his way home by a local bar/grocery store, where, he alleges, his drink was drugged by a young woman who joined him. He claims that he awoke the next morning in a strange place, feeling ill and disoriented, and found that $5,000 had been charged to his debit card. The grievant and his wife state that he continued to hallucinate and be paranoid for two days, supporting their conclusion that he had been drugged. He reported the incident to the RSO and was later recommended for separation for cause based on two charges: 1) Conduct Unbecoming, for having had commercial sex in violation of Department policy; and 2) Dishonesty, for having reported his credit cards stolen, when he still had them in his possession. FSGB Case No. 2015-048.  (This case does not appear to be available at fsgb.gov but a similar case is

    FSGB No. 2012-019 (PDF) which also involves a drugged IMO employee).

IMPLEMENTATION DISPUTES

During the past year the Board resolved two implementation disputes filed by AFSA.

  • The first involved the meaning of language in the 2013 Precepts governing the award of Meritorious Service Increases (MSIs). AFSA and the Department had for many years negotiated the Procedural Precepts concerning MSIs. The Precepts had historically called for awarding MSIs to all employees recommended by the Selection Boards, up to a set percentage of employees in each competitive class. Due to the sequester of funds government-wide in 2013, the negotiated language permitted withholding payment of the MSIs. When the sequester was lifted, the Department nevertheless continued to withhold payment of the awards. AFSA argued that refusal to pay at that point violated the terms of the Precepts to which they had agreed. The Board found in AFSA’s favor, based on the parties’ past practice. The Department has appealed this decision to the Foreign Service Labor Relations Board, which has not yet ruled. FSGB Case No. 2014-028. (PDF)
  • In the second implementation dispute, AFSA alleged that the Department had failed to hold negotiations and/or reach agreement with it on an Embassy London change in practice relating to the deductions Embassy London employees could make from the salaries of their own domestic employees when those employees were given room and board in embassy-provided housing. AFSA contended that the embassy’s unilateral change violated the FAM and the parties’ 1987 Framework Agreement. The Board found that the appeal was filed late and dismissed it for lack of timeliness. FSGB Case No. 2015-005. (PDF).

Read the full report below or read it online via fsgb.gov:

 

#

Snapshot: Foreign Service Grievance Board Statistics — 2012

— Domani Spero

We last posted about this in Foreign Service Grievance Board: Out With The Old, In With The New — Website.  Below are the numbers for calendar year 2012. FSGB did not make this available until about September this year.

Screen Shot 2013-09-28

In 2011, the average time for consideration of a grievance case was 41 weeks, so the Board had been able to shaved off 8 weeks from the process in 2012.

Below is the FSGB’s summary of its cases, extracted from the 2012 annual report posted at fsgb.gov:

EERs/IERs/OPFs 

The Board decided 16 cases in which the grievants contested some aspect of material in their Official Performance Files (OPF), which provide the basis for promotions and other career decisions. The cases included a variety of claims: late and missing awards; falsely prejudicial material; lack of prior counseling on perceived performance deficiencies; and procedural errors. The Board affirmed the agency’s decision in eight of the cases; reversed the agency in five cases; and partially affirmed/partially reversed in one case. One case was dismissed for lack of jurisdiction, and two were settled.

In one case, the Board rever reversed a decision by the agency that the grievant had not met the standards of her class. The Board found that the agency had violated several of its own regulations by not providing grievant written notice of performance deficiencies or adequate counseling. It also found that the record did not support the conclusion that the grievant had not met the standards of her class. The Board made the relatively unusual recommendation in this case that the agency grant the grievant a retroactive administrative promotion.

In another case, the Board found that the many procedural errors incurred in processing the grievant’s OPF for tenure review cast serious doubt on whether the grievant had received a fair review in a year in which he was denied tenure. As a remedy, it directed that the grievant’s OPF be placed before reconstituted tenure and selection boards.

Financial Cases 

The Board resolved 20 cases involving financial disputes this year, as compared to eight cases the previous year. It affirmed the agency decision in 13 of those cases, and partially affirmed and partially reversed in three cases. Three cases were settled and one was dismissed for lack of jurisdiction.

The three cases in which the agency was partially reversed involved reimbursement for the cost of vaccinations; credit for prior work experience in setting initial salary; and reimbursement for the shipment of HHE effects to grievant’s separation address upon his retirement. Six of the cases in which the agency decision was affirmed also involved challenges to the grievant’s starting salary.

One of the more complex financial cases involved the shipment of wood flooring, doors, and door frames by grievants in their household effects. The agency characterized the items as construction materials rather than household effects, and charged grievants for their shipment. The Board upheld the agency’s finding that the items could not properly be considered HHE. (In a separate action, USDA found the wood to be an endangered species that could not be imported legally unless it was part of HHE, and the items were eventually confiscated and destroyed.)

Disciplinary Cases 

The Board decided 12 disciplinary cases this year involving a range of issues: inappropriate behavior toward women; extramarital relationships; lack of candor; drinking while armed; failure to report contacts; unauthorized travel; violation of the agency’s Cyber Security Policy; violation of an embassy vehicle use policy; drunk and disorderly conduct; and misuse of USG equipment. The Board affirmed the agency decision in four cases; partially affirmed and partially reversed in two cases; and reversed in one case. Five of the cases were settled.

Separation Cases 

The Board addressed 12 cases involving the potential separation of the employee. Four of the cases involved separation for cause for misconduct. The other eight involved recommendations for separation by the Performance Standards Board for failure to meet the standards of the class; failure to become tenured; failure to meet an agency’s language requirements; and suspension of the employee’s security clearance. Eleven of these cases were settled and/or withdrawn. In the remaining case, the Board affirmed the agency’s decision to separate the employee for cause. No hearing was held, however, because the employee was living outside the country and failed to respond to repeated attempts by the Board and the agency to schedule a hearing.

Assignment 

Three grievants claimed that assignment actions violated agency regulations and policies. One grievant challenged the agency’s decision to direct a third assignment when his second assignment as a junior officer was curtailed for medical reasons. A second grievant objected to the agency breaking a linked assignment to a follow-on post when he curtailed from Afghanistan under conditions that were considered both medical and voluntary. The Board affirmed the agency decision in both cases. The Board dismissed the third grievance, in which the grievant claimed that the agency had violated merit system principles by not giving him an at-grade assignment, for lack of jurisdiction.

Other 

Five cases fell outside the above categories. These cases involved claims regarding non-selection for a position as an Eligible Family Member; an improperly delayed investigation by Diplomatic Security that resulted in a disrupted career and legal fees; statements made in a Report of Investigation that allegedly discriminated against grievant on the basis of disability and mental illness; improper calculation of grievant’s Time in Service date; and the agency’s improper failure to extend grievant’s retirement travel date. Three of the cases were dismissed for lack of jurisdiction and/or timeliness. One was settled. The Board affirmed the agency decision in the final case.

We will post separately the judicial actions on the 2012 FSGB cases.

* * *

Foreign Service Grievance Board 2012 Statistics — Up/Down Whatever Percent From 2011

— By Domani Spero

On June 19, 2012, we blogged this: Snapshot: Foreign Service Grievance Board 2011 Statistics, Up 25% from 2010.  The annual report is  submitted to the Committee on Foreign Relations at the United States Senate (SFRC), the Committee on Foreign Affairs at the House of Representatives (HFAC) and the Director General of the Foreign Service at the State Department (DGHR).

Eight annual reports are posted online with the exception of the 2012 report.  While all congressional submissions were dated in February and March of the previous years, there is no indication when these reports were made available online.  We regularly visit fsgb.gov, a website from  “yabba dabba doo!” When we posted about the 2011 report last year, we just discovered it in a dig done in June 2012.

  • 2004 – submission date: March 23, 2005
  • 2005 – submission date: March 23, 2006
  • 2006 – submission date: March 27, 2007
  • 2007 – submission date: March 27, 2008
  • 2008 – submission date: February 27, 2009
  • 2009 – submission date: February 26, 20120
  • 2010 – submission date: February 28, 2011
  • 2011 – submission date: February 28, 2012

It’s now almost fall and the 2012 annual report is still unavailable; a June 2013 email inquiry to the Board remains unacknowledged.  As of October 1, 2011, Garber Davidson is the Chairman of the Foreign Service Grievance Board. Elliot Shaller is the Deputy Chairman.  Mark S. Johnsen assumed his duties as the Executive Secretary to the Foreign Service Grievance Board on March 11, 2013. But wait, the FSGB website also says that Christopher Wittmann is its current Executive Secretary.  Can you please, please get the real Executive Secretary to step forward? Why? Well, because … it looks … it doesn’t look too good that the FSGB can’t even sort out who is its executive secretary.

While waiting for the 2012 report to make its online appearance, let’s make do with the 2011 stats. Pardon me? You want permission to bring up/down the grievance rate until the 2012 report escapes from Bedrock’s primitive typewriter?  Who are you, Fred Flintstone?

 

Screen Shot 2013-08-27 at 8.30.23 PM

👀

Snapshot: Foreign Service Grievance Board 2011 Statistics, Up 25% from 2010

This is a snapshot extracted from the Foreign Service Grievance Board Annual Report to Congress for 2011. Seventy new cases were filed with the Board in 2011, a 25% increase over the 56 cases filed in 2010 (which was a 30% increase over the cases filed in 2009). All but 11 cases were filed by Department of State officers.

Yes, it’s mid-June 2012, but the report had only recently surfaced online.  The annual report is submitted to the Committee on Foreign Relations at the United States Senate (SFRC), the Committee on Foreign Affairs at the House of Representatives (HFAC) and the Director General of the Foreign Service at the State Department (DGHR).

Total cases filed 70

Types filed

EER/OPF 26
Financial 15
Disability 0
Discipline 15
Separation 2
Assignment 4
Implementation Dispute 0
Other 8

The following dispositions were cited for the 52 cases closed in 2011:

Agency Decision Affirmed 20
Agency Decision Reversed 2
Partially Affirmed/Partially Reversed 5
Settled/Withdrawn 16
Dismissed 7
Consolidated 2

Note: Agency Decision Affirmed means that the grievance filed with the Board was denied and the grievant did not prevail. Agency Decision Reversed means that the grievance was sustained in whole or in substantial part. Dismissals refer to cases in which the Board found no proper basis to proceed (e.g., dismissal due to mootness, denial of motion for reconsideration, lack of jurisdiction, timeliness, etc.).

Average time for consideration of a grievance, from the time of filing to a Board decision:  41 weeks.

Pending before the Board as of December 31, 2011: 59 cases

The 70 new cases docketed in 2011 involved Foreign Service personnel from the following agencies:

Department of State 59
U.S. Agency for International Development 5
Department of Commerce 4
Department of Agriculture – FAS 2

No cases were filed in 2011 involving the Peace Corps or the Broadcasting Board of Governors (which includes Voice of America, Radio Free Europe, Radio Free Asia, TV Martì, and the Middle East Broadcasting Networks).

The FSGB cites the challenge of electronic documents:

The Board members’ responsibilities for managing case documentation have grown increasingly challenging as paper documents have been supplanted by electronic documents transmitted as e-mail attachments. The time-consuming and frustrating task of organizing and working with a body of information dispersed into hundreds of inconsistently-named electronic files does not represent the best use of Board members’ limited and valuable time. In the closing months of 2011, the Board’s staff confronted this problem by devising a system for consolidating, organizing and naming electronic case documentation in a way that will significantly simplify this aspect of Board members’ work – and which will also provide them with better tools for working with the ROP and related documents. Our implementation of this system commenced in January 2012, and next year’s report will include a more detailed description and assessment of the Board’s Electronic Record of Proceedings (eROP).

The Foreign Service Grievance Board (FSGB) by the way, functions as the primary dispute resolution entity for the Foreign Service.  And its importance is shown by the lack of resources for the FSGB website, and its stone-age search function.  Straight from the FSGB:

“We have not been able to make planned improvements to the FSGB website (FSGB.gov) because of a lack of resources and logistical considerations, but we have managed to keep the site current with recently decided cases and other information for both public and internal use. We hope to implement some of the planned improvements during the current year.”

At least the more recent records of proceedings or ROPs are now available in PDF files and not just Word docs. We’ll be in the lookout for website improvements in the next six months or the next annual report, whichever comes first.

Domani Spero