FSGB: Selection Boards Cannot Rely Almost Exclusively on Discipline Letters For Low-Ranking

 

Via FSGB Case No. 2021-019 | September 28, 2021
Held – Grievant proved by a preponderance of the evidence that the 2020 Foreign Service Selection Board (“FSSB”) committed procedural error in low-ranking him.
Case Summary – Grievant argued that the 2020 FSSB effectively relied only on a discipline letter in his Official Performance Folder (“OPF”) when deciding to identify him for low-ranking, a violation of its Procedural Precepts. While the FSSB also referenced a Developmental Area (“DA”) from his 2018 Employee Evaluation Report (“EER”), grievant argued the FSSB misinterpreted the DA. Moreover, he maintained, the FSSB was required to substantiate the discipline letter and the DA with examples from his evaluations, which it did not do. Grievant argued that the FSSB cannot low-rank him for failing to demonstrate growth without citing examples from his evaluations for the last five years to substantiate its finding, which it failed to do. Grievant asked that the low ranking be rescinded and he be mid-ranked.
The Department of State (“Department”) noted that the discipline letter was correctly included in grievant’s OPF and therefore was appropriately available for review by the FSSB. The FSSB clearly stated in its low-ranking statement (“LRS”) that it had reviewed the past five years of grievant’s evaluations as required by its Procedural Precepts. The FSSB properly linked grievant’s conduct as discussed in the discipline letter to performance standards, skills, and competencies. The FSSB referred to both the discipline letter and the 2018 EER, meeting the standard for specific references established in the FSSB Procedural Precepts. The expectation of professional growth is implicit in the appraisal process and does not require a separate definition. Grievant also failed to place a rebuttal letter into his file although given the opportunity to do so.
The Foreign Service Grievance Board (the “Board”) found that the LRS relied inappropriately on the discipline letter, without the supporting examples from evaluations which are required by its Procedural Precepts. The LRS made a passing reference to the 2018 DA that came from the same rating period as the discipline letter and was not substantiated by examples from relevant EERs as required by the FSSB Procedural Precepts. The LRS inappropriately faulted grievant for failing to demonstrate growth in two specific areas without citing evidence from his OPF. Grievant’s decision not to submit a rebuttal to the discipline letter is irrelevant.
The Board granted the grievance and ordered the Department to rescind the low-ranking and amend grievant’s record to show mid-ranking.
Details:

REDACTED(“grievant”) is an FO-01 Economic Officer employed by the Department of State (the “Department” or the “Agency”) since 1998. He has served at numerous foreign and domestic posts, and by 2018 had earned three Meritorious Service Awards across his 20-year career.

On May 31, 2017, grievant was assigned as Deputy Chief of Mission (“DCM”) to the U.S.Embassy REDACTED (the “post” or the “country”). Upon his arrival grievant became the Chargé d’Affaires ad interim (“CDA”) of the U.S. Embassy at post, and served in that capacity until January 27, 2018 when a new ambassador arrived. During the time grievant was CDA, he appointed his Management Officer (“MO”) as his Acting Deputy Chief of Mission (“ADCM”) upon her arrival at post in August 2017.

Between September 2017 and January 27, 2018 grievant made a series of inappropriate comments and gestures directed at the MO and an office management specialist (“OMS”), persisting even after being advised he was making others uncomfortable. On April 5, 2019, the Department proposed discipline of a seven-day suspension without pay based upon a June 6, 2018 Sexual Harassment Inquiry received from the Office of Civil Rights (“S/OCR”). After receiving grievant’s written and oral submissions in response to the discipline proposal, the Department mitigated the discipline to a five-day suspension in a letter, dated April 6, 2020, which listed nine specifications of inappropriate comments. Consistent with regulation,1 this letter was placed in grievant’s OPF where it will remain until May 2022.
[…]
Grievant does not challenge the presence of the discipline letter in his OPF. However, he argues that the FSSB is barred by its Procedural Precepts from relying solely on a discipline letter in order to low rank him; that it is required to do more than just allude to reviewing the last five years of his evaluations and must instead cite specific examples from those evaluations linked to his alleged inadequacies. He further contends that the FSSB cannot low rank based on a perceived lack of growth in specific skills, absent examples drawn from his evaluations.

Grievant dismisses the Department’s argument that he could have placed a rebuttal letter in his OPF in response to the discipline letter but failed to do so. The right to submit a rebuttal, he insists, is irrelevant to the procedural error committed by the FSSB.
[…]
This Board finds that the Procedural Precepts are clear regarding the standards for taking the serious decision to low rank an employee for good reason. Affirmations cannot replace the specific examples required by the Procedural Precepts. A void in substantiating failure to perform cannot be compensated with specific examples related to positive performance.
[…]
The Board finds that the FSSB misinterpreted the DA. Grievant arrived at post in May 2017, and the OIG investigators came in October 2017. Any adverse findings by the OIG relating to the embassy’s internal management could not logically be attributed to any failing by grievant in those few months.
[…]
The Board acknowledges the gravity of grievant’s conduct and the importance of considering the discipline letter as part of the FSSB process. However, as we recently decided in FSGB Case No. 2021-002 (June 25, 2021) at 21:

The FSSB precepts also sought to protect employees from being sanctioned twice for the same misconduct by prohibiting sole reliance on discipline letters when the FSSB is making decisions about low-ranking.

By relying exclusively on the discipline letter without any substantiating examples from grievant’s evaluations for the past five years, the FSSB has committed procedural error, and has sought to penalize grievant twice for his conduct.

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FSGB: 5-Day Suspension For Inappropriate Comments and Unprofessional Conduct “Reasonable”

 

Excerpt from ROP/FSGB Case No. 2020061-September 3, 2021
ROPs available to read via FSGB.gov:
Held – Grievant failed to meet his burden of proving by a preponderance of the evidence that a five-day suspension for two charges (Inappropriate Comments and Unprofessional Conduct) with a total of 22 specifications was disproportionate disciplinary action and was untimely. The Board, finding 20 of 22 specifications against grievant justified, found that the proposed disciplinary action was reasonable, and denied grievant’s appeal.

Summary – Grievant served as the FP-02 Facility Manager at a post abroad from summer 2014 through summer 2017. According to a Report of Investigation (ROI) from the Department of State’s Office of Civil Rights (S/OCR), grievant allegedly harassed female employees at post by making inappropriate comments and displaying overly aggressive behavior towards them. Based on the ROI, the Bureau of Global Talent Management, Office of Employee Relations (GTM/ER) proposed a five-day suspension for grievant that the agency’s Deciding Official sustained. After grievant’s agency-level grievance challenging the five-day suspension was denied, he then appealed to the Foreign Service Grievance Board (FSGB, Board).

Grievant contested most of the specifications in both charges and contended that his (then undiagnosed) medical conditions were not taken into consideration in the agency’s assessment of his grievance. He also maintained that the disciplinary action was disproportionate to the alleged offense, the Douglas Factors were not appropriately applied, the comparator cases were misinterpreted, and the discipline was untimely.

The Board found that grievant did not prove that the Department failed to assign due weight to his previously undiagnosed medical conditions or misapplied the Douglas Factors when it decided the disciplinary action. The Board also found the proposal to discipline the grievant timely, as it was proposed seven months after GTM/ER received the S/OCR investigation results. The Board dismissed two specifications of Inappropriate Comments and sustained 20 specifications in the two charges against grievant. In view of the far greater number of specifications in the two charges against grievant when compared to the number of specifications in the charges against the employees in comparator cases, the Board found the five-day suspension well within the zone of reasonableness. The Board denied the grievance, finding that a reduction in penalty was not justified in view of the inordinate number of sustained specifications.
II. BACKGROUND
REDACTED (grievant) was serving as the FP-02 Facility Manager at the U.S. Embassy REDACTED  (Embassy) from summer 2014 through summer 2017. His responsibilities included maintenance, supervision of construction, and renovation of projects at the Embassy and six constituent consulates in the host country.
Grievant directly supervised four employees and had oversight for nearly two dozen skilled tradesmen, custodians,and gardeners. He managed an annual budget of over $4 million and was responsible for over $290 million in U.S. Government assets. Grievant stated that he lost annual leave due to a “crushing” workload that placed his section under constant stress not only to comply with regulatory mandates, but also to manage end-of-year funds. He attested that from years 2015 to 2016 he gained 45 pounds and suffered from insomnia, and then during consultation and training leave in July 2017, at a visit to his personal physician, he initially was diagnosed with autoimmune disease. Follow-up appointments in August 2017 revealed a diagnosis of type 1.5 diabetes, high blood pressure, and cholesterol issues.
Grievant attributed his behavior in the office (irritability, mood swings) and his medical conditions to work-related stress and stated that he has had no other incidents of unprofessional conduct with colleagues since treatment of his medical conditions.
The Department’s Office of Civil Rights (S/OCR) received in 2017 reports of grievant’s alleged sexual harassment, consisting of inappropriate comments and confrontational behavior directed at female colleagues. Consequently, S/OCR initiated an investigation. The Bureau of Global Talent Management,2 Office of Employee Relations (GTM/ER) received S/OCR’s Report of Investigation (ROI) on July 5, 2017, which included complaints about grievant’s alleged harassment of five female staff members in the form of loud bullying, demeaning comments, invasion of their personal space, and complaints about them to third parties. Reportedly, grievant was prone to storming out of meetings when colleagues’ views were not aligned with his own.
Charge l: Inappropriate Comments

3 FAM 4314 Grounds for Disciplinary Action (in relevant part)
(10) Any misconduct that does not promote the efficiency of the Service during or outside of established work hours.

Specification 1: Within the first six months of arriving at post in August 2014, you  came to the FMC
3 Office, and loudly shouted at the employees, “Where’s so and so,” and “Who’s working here,” in an angry and intimidating manner.

Specification 2: In a meeting in or about December 2014, you called her supervisor, , “a bully,” “a scumbag” and “scum of the earth.”


Specification 3: In a meeting in or about December 2014, you called FMO “incompetent” and “a bully.”


Specification 4: In April or May 2016, you advised , “Don’t go to an EEO Counselor if you have a problem.”


Specification 5: You stated within earshot that “Someone is poisoning the atmosphere here,” which she and at least one other witness believed referred to her.

Specification 6: When asked you a question about the condition of a ceiling, you shouted at her, “OH! I can’t talk about this now!! GET OUT of my office.”

Specification 7: In May 2016, you directed to “shut up and sit down” during a project meeting.


Specification 8: In April or May 2016, in front of colleagues at a section meeting, you commented “You have not shown me your skills.”


Specification 9: On more than one occasion, you disparaged the skills of architects and interior designers , even though you were aware that her background is in those fields.


Specification 10: On or about August 10, 2016, you belittled in a meeting with the DCM Deputy Chief of Mission [DCM] by stating that she was only a project manager by title and her title didn’t mean anything.


Specification 11: In a meeting in your office on or about August 12, 2016, you became red in the face and shouted at and FCS employee that you “could not handle the conversation” after they remarked that the ceiling was not in an acceptable state.

Specification 12: On or about June 17, 2017, you commented that glasses were “glasses feminists wear,” implying that you did not like them.


Specification 13: In a March or April 2016 section meeting, you stated to , in front of colleagues, “What did you do to your hair? You look like [expletive]! Your hair really looks like [expletive]!”


Specification 14: In October 2016, you asked who she voted for in the U.S. election. When she would not answer the question, you stated, “Well if you voted for Hillary, you have no morals or ethics.”


Specification 15: In mid-February 2017, you made a comment that after the election, “the pendulum is moving back” and that feelings are not going to be validated in the workplace anymore.


Specification 16: On or about January 24, 2017, throughout a conference call with [the Consul General (CG)], you muted the call to tell how much you hate [the CG] and that he is a “piece of [expletive].”

Specification 17: During a large meeting with management staff with then-Office Director , you stated, “Marriage is a good thing for you. You look so much nicer.”


Specification 18: In March or April 2016, you made an inappropriate comment to [B], whose husband was recovering from a medical issue, pointing at her aggressively and shouting, “You’re not taking care of your family.”

Charge 2: Unprofessional Conduct

Specification 1-4

ii. Alternative Solutions

The Department rejects grievant’s assertion that he has no need for disciplinary action. It points to the multiple times he was counseled on his behavior and notes that he did not modify his behavior even after he was advised to change how he interacted with people. The agency also refers to grievant’s 2017 Employee Evaluation Report (EER) that highlights his interpersonal skills in dealing with staff as an area for improvement (AFI). Therefore, the Department concluded that a lesser penalty such as a letter of reprimand would not likely have a deterrent effect on grievant.

Note: Depending on the browser you’re using, the FSGB cases may not be available to read online; each record may need to be downloaded to be accessible. With Firefox browser, however, you may select “open with Firefox” if you want to read the case file, or save the file to your computer. Please use the search button here to locate specific FSGB records.

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