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 The grievant appealed to the U.S. Court of Appeals for the D.C. Circuit, which in an unpublished judgment on July 24, 2020 affirmed the District Court’s dismissal, validating the Board’s decision.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.

 


 

@StateDept Spox Talks Foreign Service Retirement Numbers, Paris vs. Pakistan

Posted: 5:02 am ET

 

According to a State/HR workforce document, the actual retirements and retirement projections for the Foreign Service are as follows:

  • FY2015: 186 FSOs/178 FSSs retirements (or a total of 364) – actual
  • FY2016: 229 FSOs/185 FSSs (or 414 total, average 34 retirements/month) – projection
  • FY2017: 219 FSO/187 FSSs  (or 406 total/ave 34 retirements/mo) – projection
  • FY2018: 195 FSOs/193 FSSs (388 total/ave of 32 retirements/mo) – projection

For non-retirement separations (including resignations), the actual number for non-retirements separation and non-retirement separation projections for the Foreign Service are as follows:

  • FY2015: 93 FSOs/82 FSSs (a total of 175) – actual
  • FY2016:  61 FSOs/43 FSSs (104 or 9 ave separations/month) – projection 
  • FY2017: 56 FSOs/39 FSSs (95 or  8 ave separations/mo) – projection
  • FY2018: 57 FSOs/36 FSSs (93 or 8 ave separations/mo) – projection

The spokesperson gave the press an update on retirements, but the numbers did not include non-retirement separation (this includes resignations, transfers, and deaths, as well as “selection out” of tenured employees and non-tenured decisions for entry level FS employees).  If journalists simply ask for the resignation number, that number would only be one component of the non-retirement separation data.

The State Department’s DGHR has the actual numbers of retirements/non-retirement separations of Foreign Service officers and specialists for FY15, FY16, FY17, and FY18-todate. It should release those numbers. It will allow us to get a comparative view of attrition in the State Department. It will also allow us to see if the retirement/non-retirement separations are within the projected numbers made by its HR professionals in late 2016. Why? Because the agency’s own HR folks projected that the average annual FS attrition over the next five years will essentially mirror the average annual attrition of the previous five years. Obviously, that will no longer be the case with the looming staff reduction and buyouts but FY16-FY17 would still be useful markers to look at.

Since the State Department has pushed back on the narrative that the State Department has been gutted, here is its chance for some real show and tell. Somewhere in DGHR’s bullpen, somebody has these numbers and can potentially see a trend if there is one. But if we have those numbers, we, the public can also look for ourselves and decide if the “sky is falling” or if this is just a normal part of the plan.

But you know, even if the numbers show that State is not “gutted” now, even if the numbers are at par with last year’s, at some future time when the staff reduction and buyouts are fully in effect, over 2000 positions will still be eliminated from the State Department. We understand that State/HR has been sending “some serious signaling” — making reps available, sending links to necessary forms for retirements, transfers or reassignments, links to retirement courses at FSI, contact info for employee benefits, etc. So we can talk about retirement numbers all we want, that staffing reduction plan is marching on.

The State Department needs about 1,700 employees to leave through attrition, and some 600 to leave via buyouts. If the spokesperson is right, that the retirement in 2017 is “roughly on par with the number that retired in 2016” then … wait — does that mean that it’s staff reduction plan has not moved the needle?  Which is it? Can’t have it both ways, folks.

Via DPB, December 12, 2017:

QUESTION: — I was interested in listening to hear for updated figures, if you all have them, about retirements, resignations over the course of the past 11 months. He didn’t really address that. There was one brief mention of the size of the Foreign Service being roughly the same as it was at this point last year.

MS NAUERT: I do have some numbers for you, some updated numbers for you. But I want you all to keep in mind that these numbers are constantly changing. As people make decisions about retiring, we may see some new changes – or some new numbers in the coming weeks. But I do have an update for you. But go ahead, finish – if you want to finish the question —

QUESTION: Well, that’s – I just —

MS NAUERT: That’s it? Okay. So —

QUESTION: I’d like one more, but that’s the – but not about the numbers.

MS NAUERT: Okay. All right. I’ll take the numbers first and then we’ll go to your next one and get to everybody else. In terms of our career Foreign Service officers and specialists, here are some of the preliminary accounts that we have – counts, pardon me. From February the 1st to October the 31st of 2017, 274 career Foreign Service officers and specialists have retired during that time period. That is roughly on par with the number that retired in 2016. That number was 262. So 274 this year, up till October the 31st, that same time period last year was 262.

QUESTION: What about resignations?

MS NAUERT: Uh, let’s see. Retirements – I’m not sure that I have anything on actual resignations.

QUESTION: Well, you’re probably aware that in recent days there’s been a flurry of new reports about the – about mid- to lower-level people resigning out of frustration, anger —

MS NAUERT: I saw one news article about —

QUESTION: — disappointment.

MS NAUERT: — a woman who retired in Africa, or decided to step down.

QUESTION: Well, she didn’t retire; she resigned.

MS NAUERT: She resigned; pardon me.

QUESTION: So I’m curious to know about numbers of resignations rather than retirements because if you look – if someone resigns rather than retires, and doesn’t have benefits, is not vested, that’s – it’s a little bit different than a retirement. So I’d be curious, if it’s possible, to get the numbers of resignations of —

MS NAUERT: I will – I will certainly check in with our human resources people and see what I can find for you in terms of the number of resignations that we’ve had.

QUESTION: Okay. And then the last one, which will be also very brief, was that the Secretary, in response to some question, I believe, made a mention of how staffing at posts, some posts in Europe – and I think he named London, Paris, and Rome – might go down as people are repositioned. I’m wondering if this is in any way analogous to what former Secretary of State Rice put in place with this – her concept of transformational diplomacy, where she also talked about shifting significant numbers of diplomats from European capitals to places of – India, Indonesia, Pakistan, rising places. And if it is analogous, how? Because it – her initiative was not combined with a goal of reducing staffing by 8 percent.

MS NAUERT: Okay. Well, first of all, I wouldn’t compare what the Secretary mentioned today to what Secretary Rice had done in the past. And I say that because the Secretary now – Secretary Tillerson – has looked at some of our posts, some of our very, very well-staffed posts in places like Paris and London and elsewhere, and certainly they do great work there. But we also have posts where perhaps more people are needed, where there are perhaps issues that are very pressing that need a lot more attention.

So I think as the Secretary looks at some of these bigger posts in very well-off countries, industrialized countries where the issues aren’t as grave as in other places, he’s looking to maybe see if we can reconfigure things to put more people in posts where there may be more people needed.

QUESTION: Can I follow up on that?

MS NAUERT: So that’s why I wouldn’t compare it to Secretary Rice’s. Yeah, hi, Nick.

QUESTION: Just to follow up on that, he said that there would be no office closures. Does – is he saying now that there will be no closures of consulates in countries in Europe as part of this shift in resources?

MS NAUERT: I don’t think so. I think – and we’ve spoken about this in the past. I think he’s just looking at it, saying, hey, look. Look at Paris. Look at London, where – I don’t know what the numbers are, and you know we don’t announce those numbers anyway. But they’re – it’s a huge staff in some of these places. And if you look at that and compare it to – and this is just me saying this – if you compare it to a place like Pakistan, they might need more people in Pakistan. They might need more people in Venezuela. They might need more people elsewhere than they have in these beautiful postings like Paris.

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Snapshot: @StateDept’s Civil Service and Foreign Service Retirements, January-October 2017

Posted: 1:33 am ET
Updated: 11:01 am PT
Follow @Diplopundit

 

The following are clips with the names of Civil Service and Foreign Service employees who retired from the State Department from January to October this year. The names were published in the monthly trade magazine of the State Department. It looks like there are three non-career appointees included in the lists below. Political ambassadors conclude their appointments at the end of their tours, they do not “retire” from the Foreign Service as they are not career members. (Correction: We understand that if, at the time of conclusion of the non-career appointment, the person has sufficient federal government service (in various capacities during an entire career) and is otherwise eligible for federal retirement benefits, then the person can, in fact, “retire.” We do not know if they get Foreign Service retirement). We’ve asked if these names come from the Bureau of Human Resources but we have not received a response as of this writing. An unofficial source told us that these names come from HR but that there is typically a lag of a couple of months from actual retirement to publication of the name in State Magazine.

The *June and *July/August lists are particularly problematic due to some duplication of names on both lists but we’re posting these here for a snapshot of the departures. This does not include non-retirement separations. Based on these imperfect lists, the total retirements for the first 10 months of 2017 are at least a couple hundred employees each for the Civil Service and the Foreign Service. And we still have a couple months to go.

However, since the federal government manages its records by fiscal year, DGHR should already have the retirements and non-retirement separation data for FY2017 that ended on September 30, 2017. The State Department has always been proud of its low attrition rate, if our HR friends want to tout the FY2017 attrition data, let us know.

January 2017 – CS-24; FS-14

February 2017: CS-10; FS-45

March 2017: CS-47; FS-25

April 2017: CS-43; FS-25

May 2017: CS-16; FS-4

*June 2017: CS-54; FS-56


*July/August 2017: CS-41; FS-57
September 2017: CS-17; FS-34

October 2017: CS-11; FS-22


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