FSGB: After 15-Day Suspension, @StateDept Wants to Separate Employee For Same Misconduct

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Via FSGB Case No. 2021002
Held Grievant proved by a preponderance of the evidence that the 2019 Foreign Service  Selection Board (“FSSB”) committed procedural error in deciding to lowrank him and to refer  his Official Performance File (“OPF”) to a Performance Standards Board (“PSB”). The Foreign  Service Grievance Board (“Board”) rescinded the low ranking by the FSSB and its referral of  grievant’s file to the PSB. Accordingly, the Board rescinded the recommendation by the PSB to  separate grievant from the Foreign Service.
Case Summary Grievant argued that the 2019 FSSB gave undue consideration of a discipline  letter in his file and committed other procedural errors, in violation of its precepts, when it  determined that his performance was deficient and referred his OPF to the PSB. Grievant  contended that the PSB also violated its precepts by relying improperly on the discipline letter in reaching its decision to recommend that he be separated from the Service.

The Department of State (“Department”) posited that the FSSB properly considered grievant’s  OPF, including the discipline letter, and complied with all precepts when it assessed deficiencies  in grievant’s performance, issued a lowranking statement, and referred his OPF to the PSB. The agency also argued that the PSB also followed its precepts when it assessed grievant’s  performance failures, compared his file to those of 10 randomly selected colleagues of identical rank, and ultimately recommended that grievant be separated.

The Board held that grievant met his burden of proving that the 2019 FSSB committed procedural errors by lowranking him and referring his file to the PSB. Accordingly, the Board rescinded the lowranking and the referral as well as the subsequent PSB decision to recommend grievant for separation.

Excerpt from background of case:

REDACTED (“grievant”) is an FS01 officer who joined the Foreign Service of the Department of State (“Department,” “agency”) in 1998 and began a career with assignments primarily in Africa and Latin America. In July 2016, he was assigned as the Deputy Chief of  Mission (“DCM”) in the U.S. Embassy REDACTED (“embassy,” “post”).

On March 7, 2017, grievant does not dispute that he had multiple drinks at the embassy’s Marine House, followed by additional drinks at a local restaurant, after which, he returned on foot to his official diplomatic residence. On his way home, grievant was approached by a woman who asked if he wanted company. Grievant permitted the woman to accompany him to his residence where they continued drinking and she remained overnight. Grievant admitted that he initiated sexual contact with the woman and brought her to a bed in his guest room. There, he claims he fell asleep, but acknowledged that he did not recall all that happened. Early the next morning, the woman demanded money; grievant refused; and the woman began throwing things in the house. Grievant and the woman engaged in a physical altercation that was overheard by local embassy guards who responded to the scene. The woman was removed from the residence, taking with her grievant’s government-issued Blackberry. During her removal, the woman’s cell phone was damaged. She later returned with two local police officers and threatened to press charges against grievant. Grievant paid the woman $430 upon the advice of the Regional Security Officer (“RSO”) at post. The incident prompted grievant to be involuntarily curtailed from post in April 2017.

On June 9, 2019, Diplomatic Security (“DS”) completed a Report of Investigation (“ROT”) of the incident (“the embassy incident”), finding grounds for one specification on charges of Notoriously Disgraceful Conduct and Poor Judgment.’ During the DS investigation, grievant revealed for the first time that in 2015, he had been arrested REDACTED for driving under the influence (“DUT”). His failure to report this arrest within 72 hours, as required by 12 FAM 272, resulted in one specification of a third charge — Failure to Follow Policy.

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