FSGB: @StateDept Miscalculates Length of Creditable Federal Service in Annuity Case

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USADF is an independent U.S. Government agency established by the U.S. Congress to support and invest in African-owned and African-led enterprises that improve the lives and livelihoods of people in underserved communities in Africa. See the African Development Foundation Act.
Via FSGB 2020-040:

Held – Grievant established by a preponderance of evidence that the Department of State (“Department” or “agency”) committed grievable errors when it miscalculated her length of creditable federal service and erroneously determined that her 2015-2016 employment with the U.S. African Development Foundation (“USADF”) was not federal service.

Case Summary –

Grievant was employed intermittently by the federal government from 1980 to 2016. In July 1984, grievant, previously a Civil Service (“CS”) employee of the U.S. Agency for International Development (“USAID”), converted to the Foreign Service (“FS”). From July 22, 1984 through at least February 24, 1988, USAID’s records show her as a participant in the Foreign Service Retirement and Disability System (“FSRDS”), paying the required seven percent (7%) mandatory employee contribution, receiving no credits under the Old-Age, Survivors, and Disability Insurance (“OASDI”) program, and not contributing to the Thrift Savings Plan (“TSP”). Upon applying for a pension, however, she was informed by the Department that she was four days short of the minimum five years required to qualify for an annuity.

Grievant asserted that she initially planned to resign from USAID on February 24, 1988, but that she decided to remain at post until March 11, 1988, in the FS and a participant in the FSRDS for those 15 days. She submitted two documents to verify her employment end date of March 11, 1988: a USAID-generated Individual Pay and Leave Record that showed employment by USAID for five pay periods in 1988 and a 1988 State Department FSRDS Participant Record from the Department. Both of those documents showed retirement payroll deductions through March 11, 1988. Grievant also complained that the Department did not consider her 2015-2016 employment with the USADF, a U.S. government agency, as federal service.

The Department denied that grievant was employed by USAID from February 25 to March 11, 1988. The Department relied on a USAID SF-50 form stating that grievant’s retirement date was February 24, 1988. The Department argued that its practice was to use an SF-50 as the only primary evidence available to verify creditable service, rejecting grievant’s documents as less persuasive secondary evidence. The Department offered no explanation for omitting grievant’s USADF employment from the calculation of her federal service.

The Board found that the State Department FSRDS Participant Record was a primary source of verification, that it was supported by the USAID-generated Individual Pay and Leave Record and was a more reliable record than the conflicting SF-50 form. The Board noted errors in the SF-50 form and prior SF-50s of grievant. Accordingly, the Board found that grievant proved by a preponderance of evidence that her creditable federal service at USAID ended on March 11, 1988. The Board also found that grievant was in federal service for the 2015-2016 period, as evidenced by SF-50s prepared by USADF.

The Board directed the Department to recommend an appropriate retirement annuity consistent with this decision and present to grievant for her consideration. The parties were ordered to report the Department’s recommendation of an annuity and grievant’s response to the Board within 30 days of this decision. The Board retains jurisdiction of the case.

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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.