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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