FSGB: Salary Determination Per SOP 134D1? What’s that?

 

Via FSGB Case No. 2019-049:
Held – Grievant failed to establish by a preponderance of evidence that the Department of State (“Department” or “agency”) committed a grievable error in its initial determination, or its resolution of, the appeal of grievant’s salary determination. However, grievant did establish by a preponderance of the evidence that the Department erred in not following its own standard operating procedure (“SOP”) regarding the provision of notice of the right to appeal the salary determination and affording her sufficient time to prepare an appeal. The Board ordered the Department to permit grievant to submit supplemental appeal materials to a new Salary Review Committee (“SRC”).
Case Summary – Grievant became a Foreign Service generalist career candidate in 2018. She contended that in determining her starting salary for that position, the Department Office of the Registrar violated published policy and acted arbitrarily and capriciously by declining to credit a number of theatrical stage management jobs she had held as qualifying experience that would have resulted in a higher starting salary. Believing that she had less than 12 hours to appeal, grievant quickly submitted arguments to the SRC for reconsideration of the salary determination, but that body confirmed the starting salary offered by the Office of the Registrar.
Grievant accepted the position, but several months after her start date, she grieved the starting salary. She contended in her grievance that the SRC was unfamiliar with the primarily intellectual nature of stage management jobs and, therefore, wrongly concluded that some, but not all, of her stage management positions did not constitute qualifying experience. She further contended that both the Office of the Registrar and the SRC miscalculated the duration of one or more of the jobs that they found were qualifying, by interpreting her month/year description of these short-term positions as lasting to the beginning of the ending month, rather than through the entire last month. Grievant further contended that she was never given the necessary information about appeal procedures from the decision of the Office of the Registrar. She claims that, in violation of Department SOPs, she was given only a few hours, rather than the required 30 days to prepare and submit her appeal.
The Board concluded that grievant failed to establish by preponderant evidence that either the Office of the Registrar or the SRC had violated published policy or acted arbitrarily or capriciously in determining her starting salary. The Board found, however, that the Department erred by deviating from its SOPs that mandated the provision of 30-days’ notice to career candidates about the appeal procedure from decisions of the Office of the Registrar, which caused grievant to submit a rushed appeal to the SRC. The Board further concluded that the error may have been a substantial factor in the SRC’s decision to confirm her starting salary. The Board, therefore, denied the grievance in part and upheld it in part. As a remedy, the Board ordered the Department to permit grievant to submit supplemental appeal materials to a new SRC within 30 days.
[…]
The September 21 email, containing the salary offer, but none of the other information described in SOP 134D1, and the subsequent email correspondence (which informed the candidate only that “your file is marked to be reviewed”), clearly did not meet the requirements laid out in SOP 134D1. The October 4 email, containing the appointment letter, meets the requirements of the SOP, without explicitly referring to SOP 134D1. This was apparently meant to be the beginning of the review and appeal process, not the end. By not clearly distinguishing for grievant the difference between an informal preview/review process in the Registrar’s Office and the 30-day deadline for a formal appeal to the SRC, the Department committed a procedural error that generated unnecessary fog in an already rushed process. We conclude that grievant was denied a clear and meaningful opportunity to present clarifying information to the SRC. In addition, we conclude that she has established that the procedural error may have been a substantial factor in the action of the SRC. We note that she does not have to prove that the additional material that she proffered in the grievance appeal would have caused the SRC to reconsider her salary.
In cases where the Board finds procedural error that may have been a substantial factor in an agency action, the burden of proof shifts to the agency to show, by preponderant evidence, that the agency, (the SRC in this instance), would have taken the same action had the procedural error not occurred. See C.F.R. 905.1(c). The Department has explained the reasoning of the SRC, but it has not presented a persuasive argument, supported by preponderant evidence, that the outcome would have been the same had grievant been given timely notice of her right to file an appeal to the SRC, i.e., that, had it followed its own SOP, the grievant would have submitted additional documentation and the SRC would have made the same determination with respect to each of grievant’s numerous short-term stage management positions and arrived at the same grade and step level.
The Board therefore finds that the Department has not carried its burden of proving that the SRC would have come to the same result absent the procedural error. Accordingly, the Board grants grievant’s request for a reconstituted SRC to review her initial salary determination after reviewing any additional relevant information that she would like to provide, in conformity with SOP 134 D1.
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FSGB: A Tandem Couple Gets a Penalty, You Guess It — For Being Married

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One of the cases highlighted in the recently released FSGB Annual Report for 2020 is one relating to finances involving  an FS-06 Office Management Specialist (OMS)  married to a Diplomatic Security Special Agent. Two FS employees married to each other is called a tandem couple.
In FSGB Case No. 2019-024, the Board overturned the Department’s application of several Standard Operating Procedures to grievant and her tandem spouse that denied her per diem and related travel benefits during a four-month period of mandatory language training in Washington, D.C. between her first and second assigned posts overseas. The Board found that in addition to internal inconsistencies, the Standard Operating Procedures applied by the Department conflicted with applicable federal statutes and regulations that otherwise governed grievant’s right to receive travel and per diem benefits.
FSGB Case No. 2019-024 Summary

Grievant was an untenured Foreign Service officer of the Department of State (“Department,” “agency”) who was part of a tandem couple. Grievant was directed to her first assignment overseas, at the end of which, she planned to take Home and Annual Leave, followed by sixteen weeks of mandatory language training at the Foreign Service Institute (“FSI”) in Washington, D.C., in advance of an onward assignment. Grievant’s husband, also a Foreign Service officer, requested and was granted Leave Without Pay (“LWOP”) in order to accompany grievant on her first tour. The Department considers LWOP on paper to be an assignment to Washington, D.C. At the end of the LWOP period, grievant’s husband planned to return to Washington to serve in a bridge assignment and to attend work-related training, followed by the same sixteen weeks of mandatory language training and the same onward assignment.

At the end of grievant’s first tour, pursuant to a Standard Operating Procedure (“SOP”), the agency assigned grievant’s husband to “long-term” training at FSI. Under federal statutes and agency regulations, an officer who is in long-term training is authorized to receive locality pay and a Home Service Transfer Allowance but not authorized to receive per diem or an allowance for meals and incidentals. An officer is entitled to per diem and related expenses if he or she is on temporary duty of six months or less.

Another agency SOP requires both members of a tandem couple to be in the same status. Therefore, the Department assigned grievant to “long-term” training at FSI to match her husband’s assignment. Grievant requested and was denied a temporary duty assignment for the duration of her training. She filed a grievance challenging the agency’s application of SOPs that denied her the right to receive federally authorized per diem and related benefits.

The Department denied the grievance, arguing that because grievant was not contending that any of the applied SOPs was contrary to law, regulation, or collective bargaining agreement, she was not legally allowed to challenge them. The Department argued further that the federal benefits statutes and regulations upon which grievant relied did not apply to her because of the operation of the agency SOPs that required tandem couples to be in the same assignment status. The Department maintained that grievant did not establish that any of the SOPs were misapplied.

The Board reviewed the primacy of the federal legislation and regulations versus the agency SOPs and concluded that the federal statutes and regulation were controlling. The Board concluded that under the applicable statutes and regulation, grievant was entitled to per diem and related benefits, in the absence of application of the SOPs. The Board further found that the SOPs were internally inconsistent and conflicted with federal law and, therefore, grievant’s challenge to them was grievable. The Board concluded that grievant proved by preponderant evidence that the SOPs that were applied in this instance improperly prevented her from receiving per diem and other benefits to which she was entitled. The grievance was therefore sustained and the Department was ordered to reimburse grievant for the benefits she should have received under federal law.
[…]
Grievant points out that she and her husband did not have a local residence in the Washington DC area, therefore, they were obligated to spend money on housing, meals and incidentals. As proof that the SOPs were erroneously applied to her family, grievant cites the fact that the Department spent more money assigning her to Washington, D.C. than if she had been detailed to FSI in a TDY capacity. She states that the Department delivered to her rental property in Washington, D.C. her household effects (“HHE”), her privately owned vehicle (“POV”), and items that had been in storage; unpacked their belongings; and then repacked them less than six months later. Had the Department allowed her to receive per diem while on short-term training, her husband would not have received HSTA and they would not have received the HHE, POV transportation, or storage shipment.

The Board concluded that grievant, a member of a tandem couple, proved by preponderant evidence that the Department of State improperly denied her per diem and related benefits when it applied several Standard Operating Procedures that were at times internally inconsistent and that conflicted with applicable federal statutes and regulations that otherwise governed grievant’s right to receive travel benefits during a period of sixteen weeks of language training between two overseas.
Grievant argued that the Department’s SOP A-11a discriminates against tandem couples by treating them as a single entity, rather than two separate employees, each with their own respective, individual entitlements. She argues that there is no law or existing regulation that mandates that both members of a tandem couple remain in the same assignment status.
Grievant explained the practical difficulties of the policy application when she wrote to HR/CDA:

Since HR/CDA does review on a case-by-case basis and exceptions have been granted in the past, we do kindly ask guidance on how to pursue having [the denial of our request for per diem] reviewed. …. [W]e have been told we may have to be assigned as a PCS [Permanent Change of Station] vs TDY. … The arbitrary interpretation of an SOP, rather than a ruling that is backed by the FAM, is going to create undue hardship on our family and unnecessary expenses for the State Department by having to receive all of our HHE, storage, POV, etc, only to have it packed back up again within 4 months. Shipping our HHE from to DC where it will be unpacked then repacked, then shipped again to is going to cost significantly more than having it held in temp storage in ELSO [European Logistical Support Office] then sent directly. I understand that we have the option to pay to keep our belongings in storage, but that forces us into a furnished apartment for 4 months. I contacted Oakwood, and a 2 bedroom apartment will cost over $23,000 for this time frame, which is just absurd. Even with DC locality and HSTA that is an extreme amount of money that I have to pay to attend required training.

Note that a hypothetical FS-06/1 employee earns approximately $42K. A 4-month rental of a furnished apartment at $23K would cost more than half that employee’s annual salary.
FSGB’s take on SOPs vs. Federal Statute:

“… where there is conflict between a state law and a federal one, the Supreme Court has stated that the federal statue must take effect. It follows, then, a fortiori, that where there is conflict between a unilaterally established agency procedure and a federal law or regulation, the procedure must equally give way to the operation of a federal statute “where it is impossible … to comply with both.” Id. Here, the Department could not comply with the federal per diem statutes, as grievant requested, solely because of its application of legally inferior SOPs. We conclude that this was clear error.”

16 Weeks is a “Long Term Assignment”, Who Knew?

“We further find that by mandating that grievant was on an assignment to long-term training in Washington, D.C., when she was in fact in training for no more than sixteen weeks, she did not have a home in Washington, she had not previously been assigned there, and she was mandated to take language training for her onward assignment overseas, the Department violated its own SOPs. Specifically, the Department violated the provision in SOP A-11a that, “The Department’s policy is to ensure that no advantage or disadvantage accrues to any employee through the assignment process on the grounds of marital status.” (Emphasis added). Application of this SOP put grievant at a clear disadvantage because she was not permitted to receive the benefits of the federal statutory per diem and M&IE benefits, solely because she was part of a tandem couple. The record is clear that had grievant not been married to her husband, she would have been entitled to seek a TDY assignment to Washington for her short-term training.

A tandem married couple penalty:

“… the Board finds that the purpose of the SOPs applied in this instance was to prevent any one employee from receiving duplicate benefits, such as per diem and locality pay, or employee benefits and family member benefits. Nothing in the SOPs suggests that the purpose was to prevent one employee from receiving certain benefits on the basis solely that the employee was married to another employee who received different benefits. If this were the case, then the procedures would advantage unmarried, but cohabiting, couples over tandem married couples.

Here’s the nutty part. When the FSGB became aware that AFSA was requesting a change in the very policies at issue in this case, it asked the Department about the proposed revision. The Department told FSGB:

Please find attached a copy of the revised SOP A-11a, which was implemented by the Department in December 2019 and is currently being announced within the Department. … As the revisions to SOP A-11a were implemented after [grievant’s] assignment in this case, the revisions have no impact on the application of the prior version of SOP A-11a to [her]. In her appeal, [grievant] contends that SOP A-11a should not have been applied to her and that she should have been placed on TDY status, that SOP A-11a was contrary to law, and that SOP A-11a discriminated based on marital status. The revision of SOP A-11a does not validate any of the arguments raised in [grievant’s] appeal.

Holymoly macaroni! It does, good heavens, it does validate all! Exclamation points added !!!!!!!!!!!!!!!!!!!!!!!!
Seriously, how does one learn to think with such mental and linguistic contortions?
We could almost imagine the FSGB Board members shaking their heads in disbelief when it said:  “The Department concedes that the policy has changed officially, precisely as grievant requested in her case. Essentially, the Department argues that the revised policy should not be applied retroactively and, therefore, grievant’s appeal should be denied.”
FSGB cases cannot be read online without downloading the files.  Files are available here.