FSGB: Requests For Discovery Fail For Imposition of “Undue Burden on the Department”

 

Via FSGB Case No. 2021-015/November 22, 2021-Order Motion to Compel
Grievant is an untenured FP‐04 consular coned officer. She has been reviewed for tenure by two Commissioning and Tenure Boards (“CTB”), the second of which recommended her for tenure; that recommendation was suspended while the Department investigated the events giving rise to this grievance.
Her grievance concerns a disciplinary proposal arising from events that took place when she was performing passport and citizenship services at a post abroad in July 2017. The Department has proposed a 4‐day suspension for charges of Misuse of Position, with three specifications, resulting from her action in sending, or attempting to send, a photo of a naked baby contained in a Consular Report of Birth Abroad (“CRBA”) file to her mother and sister, and two specifications of Poor Judgment; one for orally discussing said baby’s genitals with consular staff and a second for asking parents of CRBA applicants for photographs of her with their babies
Grievant admits the facts underlying the proposed discipline, although she alleges that she was harmed by bias and lack of counseling on the part of her supervisor and has expressed remorse for the poor judgment displayed in these instances.
However, she alleges that the penalties are disproportionate and unfairly harsh because they will effectively end her career. She argues that, unlike the individuals in the comparator cases, she is an untenured officer, and that having a suspension letter in her performance file for two years, three years into her limited career appointment, eliminates any chance of a renewed recommendation for tenure despite otherwise exemplary performance and the strong recommendations of her raters and reviewers. She further contends that because she is on a five year Limited Career Appointment as an untenured officer, undue delay in the investigation and disciplinary process, in particular a two-year gap between the completion of the investigation of the complaint by Diplomatic Security and the proposal for discipline, has harmed her by precluding any future board from considering her file absent the suspension letter.
Grievant filed a Motion to Compel on August 16, 2021, seeking full Department response to two requests for production of documents.
[…]
Additional details from ROP:

We set out below the two requests in dispute together with the respective positions of the parties.

a. Discovery Request 3: Without revealing any information protected by the Privacy Act, please provide the following information:

a. In the last ten years, how many untenured career candidates have been proposed for any action between an admonishment and a five day suspension?

b. Of those employees, how many actions were sustained as admonishments, how many as reprimands, and how many as suspensions?

c. Of those that received reprimands and suspensions, how many were deferred and/or denied tenure at least once?

d. Of those that received reprimands or suspensions, how many were actually recommended for tenure with the decision letter in their files?

e. Of those that received reprimands and suspensions, how many failed to achieve tenure?

b. Discovery Request 4: Without revealing any information protected by the Privacy Act, please provide redacted copies of Department proposal letters, decision letters and Douglas factor checklists for those cases of untenured career candidates proposed for disciplinary action up to and including five days’ suspension, within the last ten years referred to in request 3 above.
[…]

This Board has in the past denied requests for discovery that require extensive research and analysis of the files of unrelated individuals in pursuit of a statistical or other correlation.

See FSGB Case No. 2014-026 (Order dated April 26, 2015). Grievant’s argument that the Department, because it reports denial of tenure and disciplinary statistics separately to AFSA, must also keep records of the relationship between disciplinary proposals and tenure, both
statistically and with respect to each individual affected, or alternatively that the information she requests should be readily available, is largely speculative and unsupported by preponderant evidence. We therefore find that, taken together, the resources required to respond to these two requests outweigh the likely materiality of the information produced. Grievant’s Motion to Compel is denied.

 

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FSGB Grievant Asks @StateDept “Which Surnames Qualified as “Hispanic Surnames” #Census #Google

 

Via Record of Proceedings
FSGB Case No. 2020053 | October 22, 2021

I. BACKGROUND
The background of this case is described in detail in the June 17, 2021, Order: Motion to Compel issued by the Foreign Service Grievance Board (“FSGB” or the “Board”). That Order required the Department to provide additional responses to grievant’s initial discovery requests including grievant’s Interrogatory #1 which sought disaggregated statistics on rates of tenure for Foreign Service Generalist career candidates with Hispanic surnames who were considered for tenure during a specified five-year period, as compared with the tenure rate for other candidates.

On July 7, 2021, the Department responded to grievant’s Interrogatory #1.

Grievant was dissatisfied with the response and on July 14, 2021, he requested clarification of how the Department determined which surnames were Hispanic. The Department responded the same day, explaining how it had determined which surnames were Hispanic.

On July 27, 2021, grievant made a follow-on discovery request, seeking a list of the surnames the Department determined to be Hispanic and a list of the surnames of the candidates who had non-Hispanic surnames and were denied tenure.

On August 25, 2021, the Department objected to grievant’s July 27, 2021 request. The parties met and conferred on grievant’s discovery request and the Department’s objection, without reaching agreement.

In a motion to compel, the burden is on the requesting party to prove the merits of the motion. FSGB Case No. 2016-027 (Order, dated October 28, 2016); FSGB Case No. 2011-013 (Order, dated September 28, 2011).

Excerpt:

B. SECOND MOTION TO COMPEL

Interrogatory #1
Interrogatory #1 states as follows:

Please provide disaggregated statistics on rates of tenure for minority Foreign Service Generalists as compared to white Foreign Service Generalists between March 9, 2014 and March 4, 2019.

Department’s Response:
On July 7, 2021, The Department provided the following data for Foreign Service Generalist Tenure Candidates reviewed from March 2014-March 2019:

Candidates with Hispanic Surnames – 108
3 denied tenure = 2.8%

105 recommended for tenure = 97.2%


Candidates with non-Hispanic Surnames – 1871

48 denied tenure = 2.6%

1823 recommended for tenure = 97.4%

Grievant asked the Department how it determined which surnames qualified as “Hispanic surnames.”

Department’s Response to Request for Clarification

The Department responded that it accessed publicly available 2010 Census data and “pulled the record of last names where more than 50% of respondents by that name identified as being Hispanic.” There were 199 Hispanic surnames on the Census list and the Department cross-referenced those names with the cumulative list of tenure candidates. The Department then looked at all of the remaining names and identified other Hispanic surnames that did not appear on the Census list. To confirm, the Department checked those names for Spanish/Hispanic origin via Google search. Lastly, the Department checked a random assortment of the remaining names on the list of tenure candidates to confirm that they were other than Hispanic.

Relevance of the Follow-On Interrogatory

In the instant case, grievant alleges that the CTB discriminated against him because of his Hispanic surnames. Grievant has not alleged that he has direct evidence, relying entirely on statistics. To establish a prima facie case based on statistics, grievant must establish that Hispanic surnamed candidates were tenured at a statistically significantly lower rate than non-Hispanic surnamed candidates. Accordingly, the surnames of the candidates who were tenured, and those who were denied tenure, clearly are relevant to grievant’s claim, just as the gender of candidates would be relevant to a claim of sex discrimination.
[…]
the Privacy Act does not prohibit disclosure of Human Resources information about comparator employees to a grievant if ordered by the Board.
[…]
The Board has determined that grievant is entitled to know what surnames are considered Hispanic for purposes of the Department’s discovery responses. At the same time, the other candidates deserve privacy regarding their tenuring decisions. To accommodate those competing interests, the Board will order the Department to respond anew to grievant’s Interrogatory #1, as set forth in Section IV, infra.

IV. ORDER

Grievant’s Second Motion to Compel is granted in part and denied in part, as follows:

1. Within 14 days of this Order, the Department shall email grievant the list of 199 Hispanic surnames the Department previously identified from the Census data.

2. Within 14 days of the Department’s email, grievant shall email the Department a list of any of the 199 surnames that grievant considers not to be Hispanic (“List A”), and a separate list of any surnames not on the list of 199 that grievant considers to be Hispanic (“List B”) and the source of the surnames. Grievant may use any source of surnames for List B, e.g., lists publicly available on the Internet. If grievant fails to email List A and List B to the Department by this deadline, grievant shall be deemed to have waived any further response to Interrogatory #1, and grievant’s discovery shall be considered complete.

3. Within 21 days of grievant’s email, the Department shall email grievant a revised response to Interrogatory #1, using the 199 surnames from the Census data after striking the surnames on List A and adding the surnames on List B, thereby creating List C. At that point grievant’s discovery shall be considered complete. The Department may not object to responding to Interrogatory #1 using List C. ….

4. The Board denies grievant’s request for the list of the surnames the Department determined to be Hispanic and a list of the surnames the Department determined to be non-Hispanic surnames and were denied tenure.

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Read more: 2020-053 – 10-22-2021 – B – Order re Second Motion to Compel_Redacted.pdf
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 record.