Posted: 3:59 am ET
Posted: 3:59 am ET
Posted: 1:30 am EDT
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The Foreign Service Grievance Board recently released its 2014 annual report:
A primary goal of the Board continuing during this past year (and in prior years) has been to improve its timeliness in terms of issuing its orders and decisions. The Board is acutely aware of the short timeframes that impact the careers of Foreign Service employees, and especially the schedules of various agency-appointed boards that grant tenure, decide on promotions, rank (and “low rank”) employees, and make other career-defining personnel decisions. While the Board does not fully control the entire grievance appeal process, e.g., the period during which the parties engage in sometimes lengthy discovery or file time- consuming motions, it has put in place procedures to expedite where possible those actions it does control.
The three-member panels selected to decide grievance appeals continued to work effectively during the year, producing several orders and decisions with significant issues of first impression or complexity. Social media has had an impact on some of the Board’s grievance appeals, and is likely to expand as a growing presence in both professional and personal interactions among Foreign Service employees. The increased exposure of what may have been considered private communications in the past has produced challenging questions regarding standards for personal and professional conduct of Foreign Service personnel, including the issue of what is a reasonable expectation of privacy; similarly, rapid changes in technology, in particular the growth of digitally based communications and cyber tools such as cloud computing, have altered methods of information storage, access and security that undoubtedly affect Foreign Service operations. These developments, along with rapidly evolving social and demographic changes, both within the Foreign Service and the society at large, are likely to influence to some degree future grievance disputes. A major challenge for the Board is to maintain its level of institutional and technological awareness to keep pace with the dynamic environment in which future dispute resolution will be necessary.
See the stats here: Snapshot: Foreign Service Grievance Board Annual Report 2014 – Statistics
According to the 2014 report, the largest number of grievance appeals by office were those filed by employees of the Department’s Bureau of Diplomatic Security (31% of the total). The Board is now seeing cases on disability, Post Traumatic Stress Disorder (PTSD), or other medical condition that affected the employee performance or conduct that resulted in a separation recommendation. The average time for disposition of a case, from time of filing to Board decision, withdrawal, or dismissal, was 45 weeks. This is two weeks longer than the average time of disposition in 2013. The Board currently has 19 members, with 12 retired foreign affairs members and 7 legal professionals.
Below is an excerpt from the report:
Fifty-three new cases were filed with the Board in 2014, comparable to the number filed the previous year (54). Over the past six years, the number of new cases has ranged from a high of 74 to a low of 43. Of the 2014 cases, 47 cases were filed by employees of the Department of State (or survivors of State Department employees); five by employees of USAID; and one by AFSA. No cases were filed by employees of the other agencies under the Board’s jurisdiction.
Timeliness of disciplinary actions, as governed by agency regulations, also continued as an issue of concern to employees. In three new cases filed, the employees alleged that delays ranging from 14 to 36 months violated Department regulations and disadvantaged them. Two cases involving timeliness were decided by the Board this year. In the first case, the Board found that a three-year delay was prejudicial to the employee and dismissed the charges. In the second, a two-year delay was deemed not to be prejudicial, but the charges were dismissed as not proven.
Eight of the new cases filed involved a claim that a disability, Post Traumatic Stress Disorder (PTSD), or other medical condition affected the employee performance or conduct that resulted in a separation recommendation. Four involved allegations of alcohol abuse. The largest number of grievance appeals by office were those filed by employees of the Department’s Bureau of Diplomatic Security (31% of the total).
A number of individually noteworthy cases were filed in 2014:
The Board resolved 12 appeals from discipline imposed by the Department of State. There were no appeals from disciplinary decisions of other agencies. In discipline cases, the agency has the burden to prove that the charge is factually correct; has a nexus to employment; and that the penalty is appropriate. The appeals covered a range of issues: alcohol and/or weapons-related incidents (five cases); filing false claims for reimbursement; false statements given to explain an absence from work; failure to maintain control of a diplomatic pouch; interfering with an investigation; the appearance of prostitution (two cases); and a security violation. In eight of the cases the charged employee alleged that the penalty was too harsh. In five of the discipline cases the Board affirmed the Department’s decision; in two it found in favor of the charged employee; in one it partially affirmed and partially reversed; and four cases were settled before reaching a decision on the merits. Nine of the cases involved employees of the Office of Diplomatic Security.
In one discipline case and a handful of others, the employees claimed that the incidents were related to the stress of service at hardship posts. As more employees are assigned to posts in countries where violence is endemic, the Board will be sensitive to similar conditions in appeals arising from this issue.
Eighteen appeals involving inaccuracies, omissions, prejudicial statements, or prejudicial errors in employees’ Official Performance Files that could affect their promotion and/or tenuring competitiveness were decided by the Board. The Board affirmed the agency decision in ten of the cases; reversed in two; and partially affirmed, partially reversed in three cases. Two appeals were settled, and one was withdrawn.
Two of the appeals contested IERs issued by the Office of the Inspector General, one involving an ambassador and the second a public affairs officer. In the first, the Board found that the right to counseling applied equally to ambassadors as to other employees. Although the bar may be higher in what an ambassador is expected to know, the Board found that in this particular case the ambassador had no reason to know of the deficiencies identified in the IER, and, therefore, lack of counseling by her supervisors prior to inclusion of the criticisms in the IER and her OPF was not harmless error. The Board also found that several comments in the IER about another, identifiable employee should not have been included in the ambassador’s OPF. The Board ordered that the IER be removed from the ambassador’s OPF. The second case was settled and withdrawn prior to a decision on the merits.
In general, the Board does not have jurisdiction over assignment actions. However, the Board may hear appeals in which the employee alleges a procedural violation of the assignment process. Two such cases were resolved last year. The first case stemmed from the 2012 violence in Benghazi. The employee alleged that he was removed from his position based on ill-founded conclusions by the Benghazi Accountability Review Board, and that he had been made a scapegoat as part of a politically motivated damage control effort. Prior to the conclusion of the appeal process, the grievant retired from the Department. The Board found that most of the remedies he had requested were no longer viable post-retirement, and it therefore drew no conclusions based on the merits. In the second case, the Board also found that the requested remedy, a change in eligibility requirements for long- term training, was outside its authority and dismissed the case for lack of jurisdiction.
Eight appeals involving financial claims were resolved by the Board last year, each presenting different, complex issues:
Judicial Actions Involving Board Rulings
One new case was filed in the District Court for the District of Columbia last year. Gregory Picur, retired from USAID’s Office of Inspector General, appealed the Board’s decision to uphold the Department’s calculation of his retirement annuity. A decision is pending.
Three other cases are pending decisions in federal court:
One of the “other” cases adjudicated by the Board.
[T]he employee had been assigned to a senior job in an international organization for five years by virtue of separation/transfer with reemployment rights. Under that particular arrangement, his OPF was not reviewed for promotion for those years, and he was reemployed by State at the same grade as when he had left. Grievant contested the legality of that policy. The Board found that, although there was confusion within State about the ramifications of different transfer/secondment actions and grievant had not always been given consistent information, the precepts were clear and no remedy was warranted. Grievant has two related cases pending. (see Secondments to international organizations and promotions? Here comes the boo!).
The full report is available here.