Judicial Actions Involving Foreign Service Grievance Board Rulings

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The Foreign Service Grievance Board’s Annual Report for 2020 was released on March 1, 2021. It includes a summary of judicial actions involving the Board’s decisions:
Two decisions were issued in 2020 in court cases related to appeals from Board decisions:
FSGB Case No. 2017-014

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 challenging the reassignment. The Department denied the grievance, and the Board affirmed the Department’s decision. The grievant appealed the Board’s decision to the U.S. District Court for the District of the Virgin Islands, St. Croix Division, which upheld the Board’s ruling in a decision issued September 24, 2018. On appeal, the Court of Appeals for the Third Circuit affirmed the lower court decision, in an order issued January 8, 2020.

FSGB Case No. 2012-057

USAID OIG had recommended that the grievant in FSGB Case No. 2012-057 be separated for cause. The Board approved the agency’s decision in 2017, and she was removed for knowingly submitting false vouchers over a six-month period. The grievant appealed to the U.S. District Court for the District of Columbia, and in a decision issued October 12, 2018, the judge upheld the Board’s decision on summary judgment, and affirmed the Board’s decision rejecting grievant’s whistleblower retaliation claim. The grievant appealed to the U.S. Court of Appeals for the D.C. Circuit, which in an unpublished judgment on July 24, 2020 affirmed the District Court’s dismissal, validating the Board’s decision.

Pending court cases:
Consolidated cases 2013-031R and 2016-030

In a long-running case, an appeal by the State Department and USAID/OIG of the Board’s 2017 decision in consolidated cases 2013-031R and 2016-030 remains pending in the U.S. District Court for the District of Columbia. The case concerns the calculation of a Foreign Service Officer’s retirement annuity. As described in previous annual reports, the grievant in those cases contested the Department’s 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. The Board initially upheld the agency’s decision in 2014. Grievant appealed, and in Civil Action No. 14-cv-1492, the District Court vacated the Board’s decision and remanded the case to the Board for further review. On remand, the Board issued a decision granting grievant the 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, where it remains pending.

FSGB Case No. 2016-063

The grievant in FSGB Case No. 2016-063 challenged a one-day suspension based on three specifications of a charge of Improper Personal Conduct – two involving alleged inappropriate comments, and a third involving an alleged physical touching of another employee. The Department denied the grievance, and the Board affirmed in part, sustaining specifications of misconduct pertaining to one of the alleged comments and to the alleged touching, and holding that the suspension was reasonable in light of the two specifications that were sustained. The grievant appealed the decision to the U.S. District Court for the District of Columbia. The case is pending in District Court.

FSGB Case No. 2014-003

As discussed in previous annual reports, the grievant in FSGB Case No. 2014-003 filed an appeal of the Board’s decision in the U.S. District Court for the District of Colombia. She claimed that the Department violated the Americans with Disabilities Act and the Rehabilitation Act when it failed to provide her with reasonable accommodation when she was separated for failing to meet the running requirement for newly-hired DS agents and by failing to assign her to a different, available position. On May 2, 2019, the Court referred the case to a magistrate for mediation and on May 7, 2019, the magistrate ordered appointment of counsel for the grievant. The parties began mediation at the end of 2020 and are still engaged in mediation efforts. No trial date has been set.

Pending with the Board
FSGB Case No. 2014-018

Also as described in previous reports, the appellant in FSGB Case No. 2014-018 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, and under Department regulations, estates are not entitled to waivers. The Board concurred and grievant appealed. In a decision issued March 23, 2017, the U.S. District Court for the District of Columbia found that the Board 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 to the Board for consideration of the merits of the waiver request. The Department moved the court for reconsideration. The court denied the Motion for Reconsideration in an order dated January 19, 2018, and again remanded the case to the Board. The Board remanded the case to the Department for a determination in the first instance as to whether the appellant’s request for a waiver should be granted. On August 6, 2019, the Department’s Associate Comptroller denied the waiver request and the parties entered into settlement discussions, requesting a stay in the proceedings in the interim. The stay has since expired and the appellant’s appeal to the Board is now pending.

 


 

FSGB Case: When “there were no mitigating circumstances” considered despite conditions identified by MED

 

Via FSGB: FSGB Case No. 2019-034, July 2, 2020
Held – The Board found that the Department of State (the “Department” or “agency”) did not establish cause to separate the charged employee from the Foreign Service because the Deciding Official (“DO”) did not consider evidence of his personality problems as a mitigating circumstance. The Board was persuaded by evidence in the record that the agency should exercise its authority to initiate, as an alternative to separation, the option of a disability retirement, pursuant to 3 FAM 6164.3(a).
Case Summary – The Department charged the employee with Improper Personal Conduct based upon a pattern of unprofessional and inappropriate conduct toward colleagues, primarily hundreds of unwanted emails and text messages with sexual content. The Department’s Bureau of Medical Services (“MED”) had conducted a mental health evaluation of the charged employee and concluded that “to a reasonable degree of certainty,” the charged employee exhibited “behavior or symptoms (which may not rise to the level of formal diagnosis) of an emotional, mental or personality condition that may impair his reliability, judgment or trustworthiness.” The DO determined that the charged employee committed the charged offenses and that there were no mitigating circumstances. In finding no mitigating circumstances, the DO attested in the separation hearing that she did not take into consideration either the charged employee’s emotional, mental or personality condition that MED identified or the charged employee’s emails to coworkers that included references to his communications with divine beings as well as references to his own possible mental illness. The DO notified the charged employee of her proposal to separate him from the Foreign Service and provided him the opportunity to reply in person or in writing. The DO recommended separating the charged employee to promote the efficiency of the Service. The charged employee did not respond in person or in writing to the DO’s notification of her proposal to separate him from the Service recommendation or participate in the separation hearing. The Board found the Department did not establish cause to separate the charged employee because the DO did not consider the so-called Douglas Factor #11 on the agency’s checklist that relates to mitigating circumstances surrounding personality problems, and did not exercise the agency’s authority under 3 FAM 6164.3(a) to initiate a disability retirement on behalf of the charged employee as an alternative to disciplinary action.

[…]

We do not claim medical or psychological expertise, but, in our perusal of the record, we found indicators that the charged employee was described as exhibiting personality problems, and possibly more serious mental impairment or illness, from the emails and text messages he sent to former colleagues. For example, in specification 84, the charged employee is charged with offering to help Ms. B draft a complaint and get himself fired and committed to a mental hospital for the rest of his life. Also, in specifications 86 and 87, respectively, the charged employee is alleged to have first made reference to someone wanting him to commit suicide, then later noted asking God if his wife would commit suicide and informing Ms. D that the Virgin Mary told him to inform Ms. D that he knew she was worried that he might kill himself. Further, the charged employee displayed unusual behavior when he emailed Ms. B on June 6, 2017 at 8:31 p.m. that he had declined to see a psychiatrist before consulting attorneys about his options to file a lawsuit.11 That suggests the possibility that someone raised with the charged employee the matter of seeking a psychological consultation or examination.
In addition, DS ROI #1 included a statement by the charged employee’s wife that she believed her husband suffered from mental impairment, requiring medical treatment. The record further contains evidence, according to the spouse, that MED had conducted a thorough mental health evaluation of the charged employee on four separate dates. Similarly, DS ROI #2 concluded that the charged employee had expressed that he heard voices and instructions from God, the Devil, and the Virgin Mary. (See Specifications 6-8, 25, 29, 38, 76 and 87).
[…]
In the instant case, while the agency has provided credible evidence that the charged employee’s conduct does not promote the efficiency of the Service, we find the decision falls short on consideration of so-called Douglas Factor #11 on the agency’s checklist that relates to personality problems as a mitigating factor. We also credit the charged employee’s 19 years of distinguished service before his display of conduct that gave rise to the LOR and the proposal to separate him from the Service.12
Moreover, the Board is unaware of a requirement that a DO must be privy to private medical information or be a medical professional to initiate an application for disability retirement. To the contrary, under 3 FAM 6164.2-3, HR/ER, in consultation with MED, can initiate an application for disability retirement on behalf of an employee if, inter alia, 1) the agency has issued a proposal to remove the employee, 2) the agency has a reasonable basis to conclude that illness may be the cause of the employee’s conduct which renders him unable to work satisfactorily, or 3) the employee is incompetent and there is no guardian willing to file an application on the employee’s behalf. The existence of any one of these three conditions is sufficient for the agency to initiate an action for disability retirement, and the Board finds that the conditions in 1) and 2), supra, are apparent in this case.
Accordingly, the Board is of the view that the agency has not considered all mitigating factors before recommending separation for cause and has not exercised its authority to initiate, as an alternative to separation, the option of a disability retirement for the charged employee where grounds for such a retirement are apparent on the record. Pursuant to 3 FAM 6164.3(a), MED then would determine whether the charged employee is incapacitated for useful and efficient service, which is the standard for disability retirement.

This Kind of Language Can Get One Suspended Without Pay in the Foreign Service

Posted: 1:25 am EDT
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In FSGB Nos. 2014-041, the grievant, an FS-02 Foreign Service Officer with the Department of State, appealed the agency-level grievance decision upholding her three-day suspension without pay for improper personal conduct and poor judgment.  While the FSGB reduced the penalty to a Letter of Reprimand, the FSO had to grieved the case before the reduction of penalty:

While grievant was serving as Public Affairs Officer (PAO) at a U.S. Embassy, the Assistant Public Affairs Officer (APAO) filed an Equal Employment Opportunity (EEO) complaint alleging that grievant made numerous inappropriate and insensitive comments (many of which she overheard) – including several references to the national origin of some local and American employees; that she used harsh and profane language that made others uncomfortable in the workplace; and that she exhibited behavior that lacked professionalism, cultural sensitivity and good judgment. The EEO complaint triggered an Office of Civil Rights (S/OCR) investigation during which about a dozen local and American employees of the embassy were interviewed and signed affidavits. The S/OCR report was forwarded to the Office of Human Resources (HR/ER). The Department proposed to suspend grievant for five days without pay based on charges of improper personal conduct (seven specifications) and poor judgment (four specifications). The Deciding Official did not sustain three of the four poor judgment specifications and mitigated the penalty to three days. Grievant filed an agency-level appeal, which was denied.

Here are the things the FSO said which made the Department charged the employee with improper personal conduct and poor judgment:

Specification 1 – Grievant asked the APAO: “What’s the name of the Chinese guy who came to borrow a recorder, who speaks bad English?”

Specification 2 – After a telephone conference with State Department staff in Washington, grievant said to the APAO: “What the hell is that woman doing in that position! She’s not even a real American!” On the following day, grievant allegedly said again: “but this woman is not a real American!”

Specification 3 – In describing to the APAO an event at a previous post involving a naturalized U.S. citizen, grievant stated: “. . . she has a U.S. passport, but she is not a true American. She was Asian. In fact, I think she was Vietnamese.”

Specification 4 – The APAO overheard grievant say – in responding to a question from an  REDACTED employee of the Embassy about the children born to immigrants to the U.S.: “[T]hose immigrants are coming to the U.S. and having babies. Even though they grow up in the States, they are not culturally American.” Her comment in the workplace where she could be overheard was inappropriate.

Specification 5 – In the presence of an American colleague, the APAO, and other local embassy employees grievant shouted into her cell phone, “You f—ing c–t! You already ate?! You didn’t wait for me!” Her use of profanity was inappropriate.

Specification 6 – An American colleague stated that at a social event hosted by a senior Embassy official he had asked what the hostess meant in saying that as a college student she had been a “little sister” in a fraternity. Grievant explained to him – in earshot of several expatriates — that “it means you don’t have a gag reflex.” The American colleague interpreted this to mean that the “little sister” was obliged to perform oral sex on members of the fraternity. In this situation grievant’s comment was inappropriate.

Specification 7 – An English Language Fellow (ELF) reported that in a conversation with the ELF in an embassy vehicle driven by an  REDACTED employee of the embassy, grievant referred to REDACTED as “stupid” and “slow.”

The FSGB in this case finds that “the Department has not proved seven of eight specifications, included in two charges that were the bases for its decision to suspend Grievant for three days. With respect to the penalty, the Board finds that it has inappropriately applied the charge of Discriminatory Harassment as an aggravating factor with respect to the sole specification that has been sustained. The Department is directed to reduce the penalty to no more than a Letter of Reprimand, and to advise the Board of its actions within 30 days of receipt of this Decision.”

Read in full here (PDF) or read below:

 

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