FSGB Case: When “there were no mitigating circumstances” considered despite conditions identified by MED

 

Via FSGB: FSGB Case No. 2019-034, July 2, 2020
Held – The Board found that the Department of State (the “Department” or “agency”) did not establish cause to separate the charged employee from the Foreign Service because the Deciding Official (“DO”) did not consider evidence of his personality problems as a mitigating circumstance. The Board was persuaded by evidence in the record that the agency should exercise its authority to initiate, as an alternative to separation, the option of a disability retirement, pursuant to 3 FAM 6164.3(a).
Case Summary – The Department charged the employee with Improper Personal Conduct based upon a pattern of unprofessional and inappropriate conduct toward colleagues, primarily hundreds of unwanted emails and text messages with sexual content. The Department’s Bureau of Medical Services (“MED”) had conducted a mental health evaluation of the charged employee and concluded that “to a reasonable degree of certainty,” the charged employee exhibited “behavior or symptoms (which may not rise to the level of formal diagnosis) of an emotional, mental or personality condition that may impair his reliability, judgment or trustworthiness.” The DO determined that the charged employee committed the charged offenses and that there were no mitigating circumstances. In finding no mitigating circumstances, the DO attested in the separation hearing that she did not take into consideration either the charged employee’s emotional, mental or personality condition that MED identified or the charged employee’s emails to coworkers that included references to his communications with divine beings as well as references to his own possible mental illness. The DO notified the charged employee of her proposal to separate him from the Foreign Service and provided him the opportunity to reply in person or in writing. The DO recommended separating the charged employee to promote the efficiency of the Service. The charged employee did not respond in person or in writing to the DO’s notification of her proposal to separate him from the Service recommendation or participate in the separation hearing. The Board found the Department did not establish cause to separate the charged employee because the DO did not consider the so-called Douglas Factor #11 on the agency’s checklist that relates to mitigating circumstances surrounding personality problems, and did not exercise the agency’s authority under 3 FAM 6164.3(a) to initiate a disability retirement on behalf of the charged employee as an alternative to disciplinary action.

[…]

We do not claim medical or psychological expertise, but, in our perusal of the record, we found indicators that the charged employee was described as exhibiting personality problems, and possibly more serious mental impairment or illness, from the emails and text messages he sent to former colleagues. For example, in specification 84, the charged employee is charged with offering to help Ms. B draft a complaint and get himself fired and committed to a mental hospital for the rest of his life. Also, in specifications 86 and 87, respectively, the charged employee is alleged to have first made reference to someone wanting him to commit suicide, then later noted asking God if his wife would commit suicide and informing Ms. D that the Virgin Mary told him to inform Ms. D that he knew she was worried that he might kill himself. Further, the charged employee displayed unusual behavior when he emailed Ms. B on June 6, 2017 at 8:31 p.m. that he had declined to see a psychiatrist before consulting attorneys about his options to file a lawsuit.11 That suggests the possibility that someone raised with the charged employee the matter of seeking a psychological consultation or examination.
In addition, DS ROI #1 included a statement by the charged employee’s wife that she believed her husband suffered from mental impairment, requiring medical treatment. The record further contains evidence, according to the spouse, that MED had conducted a thorough mental health evaluation of the charged employee on four separate dates. Similarly, DS ROI #2 concluded that the charged employee had expressed that he heard voices and instructions from God, the Devil, and the Virgin Mary. (See Specifications 6-8, 25, 29, 38, 76 and 87).
[…]
In the instant case, while the agency has provided credible evidence that the charged employee’s conduct does not promote the efficiency of the Service, we find the decision falls short on consideration of so-called Douglas Factor #11 on the agency’s checklist that relates to personality problems as a mitigating factor. We also credit the charged employee’s 19 years of distinguished service before his display of conduct that gave rise to the LOR and the proposal to separate him from the Service.12
Moreover, the Board is unaware of a requirement that a DO must be privy to private medical information or be a medical professional to initiate an application for disability retirement. To the contrary, under 3 FAM 6164.2-3, HR/ER, in consultation with MED, can initiate an application for disability retirement on behalf of an employee if, inter alia, 1) the agency has issued a proposal to remove the employee, 2) the agency has a reasonable basis to conclude that illness may be the cause of the employee’s conduct which renders him unable to work satisfactorily, or 3) the employee is incompetent and there is no guardian willing to file an application on the employee’s behalf. The existence of any one of these three conditions is sufficient for the agency to initiate an action for disability retirement, and the Board finds that the conditions in 1) and 2), supra, are apparent in this case.
Accordingly, the Board is of the view that the agency has not considered all mitigating factors before recommending separation for cause and has not exercised its authority to initiate, as an alternative to separation, the option of a disability retirement for the charged employee where grounds for such a retirement are apparent on the record. Pursuant to 3 FAM 6164.3(a), MED then would determine whether the charged employee is incapacitated for useful and efficient service, which is the standard for disability retirement.

US Mission Saudi Arabia Now on Voluntary Evacuation After COVID-19 Cases Leaked #HoldOn

On Monday,  June 29, 2020, the State Department issued an updated Travel Advisory for Saudi Arabia announcing that on Wednesday, June 24, it authorized the voluntary evacuation of nonemergency personnel and family members from the US Mission in Saudi Arabia. This includes Embassy Riyadh, and the consulates general in Jeddah and Dhahran. The order was issued “due to current conditions in Saudi Arabia associated with the COVID-19 pandemic.”

On June 24, 2020, the Department of State authorized the departure of non-emergency U.S. personnel and family members from the U.S. Mission to Saudi Arabia, which is comprised of the Embassy in Riyadh and the Consulates General in Jeddah and Dhahran, due to current conditions in Saudi Arabia associated with the COVID-19 pandemic.  

Apparently, dozens of mission employees got sick last month, and many more were quarantined. A third country national working as a driver for the mission’s top diplomats had reportedly died. The Embassy’s Emergency Action Committee “approved the departure for high risk individuals” but the State Department “denied” the request advising post  “to do whatever it can to hold on until the Covid problem improves.”
Whatthewhat? Hold on is the plan?
Also that “more recently, officials on the embassy’s emergency action committee recommended to Mr. Abizaid that most American employees should be ordered to evacuate, with only emergency personnel staying. Mr. Abizaid has not acted on that.”
Reminds us of what happened at some posts back in March (Is @StateDept Actively Discouraging US Embassies From Requesting Mandatory Evacuations For Staff? #CentralAsia? #Worldwide?). COVID-19 Pandemic Howler: “No one in DC, to include S, gives AF about AF”.  More recently, reports of COVID-19 cases at US Embassy Kabul (US Embassy Kabul: As Many as 20 People Infected With COVID-19 (Via AP).  Where else?

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@StateDept Suspends All PCS Travel Through May 31

A couple weeks ago, the State Department issued a guidance cable to all Department personnel concerning permanent change of station (PCS) travel and home leave through May 31, due to the COVID-19 pandemic.
Citing the “myriad uncertainties” and “travel and logistics restrictions”, the State Department  suspended all overseas and domestic PCS travel with very limited exceptions, effective through May 31. Transition from one Washington, D.C. assignment to another does not appear to be affected by this suspension.
This PCS suspension will reportedly be reviewed on May 20 and that this “period may be extended if the situation does not improve.”
The guidance says that exceptions to the suspension of PCS travel may be considered for certain employees like those on curtailments related to health, or mission critical employees (approved by bureau assistant secretary for certain countries, or by the Under Secretary for Management for CDC Level 3 countries or State Department Travel Advisory for Health Level 4 countries), or employees on direct to post transfers.
Diplomatic Security and medical personnel are considered mission critical and those employees are reportedly expected to PCS to their next overseas assignment, unless the Chief of Mission (COM) at the receiving post determines that “health and safety issues outweigh security concerns and prevents their arrival to post.” DS personnel are also told that they should be ready to remain at Post beyond their tour end-date if deemed necessary by their Chiefs of Mission.
The guidance encouraged employees to take their home leave between domestic and overseas assignments. At the conclusion of the home leave, employees are told to “be prepared to telework for their onward assignment at their home leave location.” The guidance further says that all employees are expected to work with their onward post and/or bureau to be assigned suitable duties for telework/remote work following Department protocols. Reiterating a prior cable, the guidance explains what supervisor can grant “weather and safety leave” to U.S. Direct Hires for those regular duty hours for which there is insufficient remote work to assign.
Additional guidance is reportedly expected to be published in the near future.

Snapshot: @StateDept COVID-19 Cases as of April 14, 2020

Note that with the April 10 update, the State Department removed the “pending tests” category, so we no longer have a view on how many pending tests are there at our overseas posts.  DOS also replaced “positive cases” with “current cases.”  According to the State Department, a current case is “a person with a positive COVID-19 test or clinical diagnosis and not confirmed to have recovered.” 
Instead of a “self-isolating” category, State is now calling this category “Remain at home” or individuals  “advised to remain at home because of contact with a known COVID-19 case or or travel to a high-risk area.” 
On the domestic side, “persons remaining at home” are no longer tracked according to State after stay at home orders/telework instructions were broadly issued.

 

Updated: April 14, 2020, 3:00 p.m. EDT

Any diplomatic posts overseas having issues obtaining proper PPE?

 

Via Briefing With Dr. William Walters, Deputy Chief Medical Officer for Operations, and Principal Deputy Assistant Secretary Ian Brownlee, Bureau of Consular Affairs On COVID-19:  Updates on Health Impact and Assistance for American Citizens Abroad | APRIL 14, 2020

QUESTION:  Hey, thank you.  Have you heard from any of the diplomatic posts overseas that they are having issues obtaining proper PPE given kind of the global shortages, particularly those who are interacting with folks who are being repatriated? 

DR WALTERS:  Yeah, it’s Doc Walters.  So with regard to PPE overseas, our – as part of our ongoing preparedness well in advance of this pandemic, the Bureau of Medical Services has small stockpiles of PPE and other countermeasures at each post.  We have supplemented that, again, well in advance of the crush on the supply chain that’s occurred.  And so our health care providers overseas and our consular officers are provided with PPE appropriate to their interaction, understanding that there are going to be times when you come into unexpected contact with American citizens and no one’s going to stop what they’re doing in helping an American citizen.

But we – as part of the safety net, both there’s the PPE side, but there’s also the small community in each of our posts that is overseen by a medical provider from the bureau, either a direct hire or locally employed, and that – that drives the statistics that I provide at the beginning of each one of these briefs, and what we’re seeing is a fairly flat curve and no ongoing employee-to-employee transmission patterns that we’ve been able to identify.

 

COVID-19 Tracker: State Department and Foreign Service Posts (April 14 Update)

Our COVID-19 tracker has large gaps in it, but we don’t have a better alternative on breakdowns as the State Department is only releasing total numbers, not locations.  We have updated our tracker to include the two confirmed FSN deaths in Jakarta, Indonesia and Kinshasa, DRC, and one confirmed FSN death at an undeclared location. There are currently two domestic deaths, one in NYC, a contractor, and one in Washington, D.C. at an undeclared office location, a Civil Service employee.

DOS Briefing 4/14/20: The State Department continues to strongly enforce and practice the appropriate social distancing and other non-pharmaceutical interventions, and that continues to be reflected in our own disease curves.  Currently there are – we’re tracking 297 overseas cases, including 182 active with 115 recovered, holding at – thankfully holding at three overseas deaths, all within locally employed staff. Domestic cases are 71 current cases, 67 with four recovered.  Important to note that we started to see domestic cases in the second into the third week of March, and so this is the point at which we would expect to see those cases start to recover.  So I would anticipate over the next week, we’ll start to see the recovery cases start to climb. I am saddened to say that we’ve had our first – our second domestic death, our first within the U.S. direct-hire population, a civil servant serving here in Washington, D.C.  And our condolences do go out to the family and to all families that have been impacted by coronavirus.”

DOS Briefing 3/23/20 “I can tell you we’re still at single digits here in the United States with cases – one each, two each, three each in Washington; Houston; Boston; New York; Quantico, Virginia; and Seattle.  So the numbers themselves are – overseas are still double-digit.  We’re looking at less than 30 scattered over 220 posts around the world, and it remains a challenge.” 

Related posts

 

 

 

 

 

 

Snapshot: @StateDept COVID-19 Cases as of April 3, 2020

The State Department updated its COVID-19 cases on Friday, April 3. 2020. From March 31 to April 3, the number of employees and family members overseas who were self-isolating went from 2,288 to 3,528, an increase of 1,240. The number of positive cases decreased from 149 to 108; while those who recovered went from 42 on March 31 to 79 on April 3, a difference of 37 new individuals recovered.
The April 3 update now includes the number of deaths. As of April 3, there were three deaths overseas from COVID-19, all three are noted as Locally Employed (LE) staffers. We learned previously that one LE staffer died in Jakarta, and another in Kinshasa. We do not know as yet, the location of the third casualty. In the April 3 briefing, Dr. Walters declined to identify the country where the third death occurred. Why? We can’t say. Obviously, the next of kin already know about the death. Co-workers at post already know about the death. We’re not sure why they’re refusing the even identify post; reporters are not asking for names. If Walters is going to cite the Privacy Act, deceased individuals and country names do not have Privacy Act rights. If there’s a real rationale for this, we’d like to know.
The April 3 update still do not include information on the number of medical evacuations (MEDEVAC), USG patients or places of origin. We can confirm at least one MEDEVAC from Burkina Faso, and that USG patient is on the road to recovery.
For domestic cases, the number of self-isolating employees went from 44 to 50 in three days, with positive cases going from 33 to 46 cases.  The report indicates that two domestic employees have recovered as of April 3, 2020.
See excerpts from April 3 briefing below.

 

As of April 3, 2020

As of March 31, 2020

 

Dr. Walters on April 3 Briefing:

Now moving on to the latest COVID-19 statistics for the Department of State, as of today, April 3rd, there are 108 confirmed cases overseas. There are 46 confirmed cases domestically, occurring in nine different cities. So far, there are no reported deaths domestically, but unfortunately there are now a total of three deaths overseas amongst our workforce.

QUESTION: Hi, thanks. I just had a question about the number of State Department deaths and a testing question. The first is: Can you give us any more information about the employee, the third person who had died or what country that was in and any other information you can give us?

And second, does State currently have a standard policy on testing? Do – for example, people who think they may be – may have the virus but are not showing symptoms, are they able to get tested? What is the standard guidance on department employees getting tested? Thanks.

MR WALTERS: So as to the first question, I can tell you that it was a locally-employed staff member overseas. I don’t – can’t really go into any further detail because it becomes easier and easier to identify individual people when you do that, so I’m afraid I can’t.

With regard to testing, domestically we all exist within a broad public health architecture. From an occupational health perspective, we have a responsibility to protect the workforce, but we live within and work within the city of Washington, D.C., or in Virginia or Maryland, and ultimately testing and contact tracing is a local and state responsibility and authority. And so we cooperate very closely with the state and local and county public health teams to make sure that we keep the workforce safe and make sure testing is used appropriately.

QUESTION: Hi, there. Thanks. Sorry, I was – I missed part of the answer to Nick’s question because of Elmo, but – (laughter) – did you, Doc Walters, say that the third death was a locally employed staffer? And is it correct that there are still no American staffers overseas who have been —who have succumbed?

And then secondly, the – how many of the more than 400 flights that Ian is talking about were commercial flights that – for which the U.S. Government did not have to pay anything? Thank you.

MR WALTERS: Thanks, Matt. I can answer the first part and then I’ll hand over to Ian and DAS Yon for the last part.

Yeah, so locally employed staff member overseas – we are not aware of any chief of mission personnel overseas who have succumbed to the illness.

Folks, we hate to do this but this is a real pet peeve for us because. Very basic.  “We are not aware of any chief of mission personnel overseas who have succumbed to the illness?” The three Locally Employed (LE) staff members who died of COVID-19 are not chief of mission personnel? Good grief!
2 FAH-2 H-112.1 talks about Chief of Mission authority to direct, supervise, and coordinate all U.S. Government executive branch employees in the COM’s country or area of responsibility.  This includes U.S. Direct Hire (USDH) employees and Personal Service Contractors (PSCs), whether assigned permanently or on temporary duty or an official visit, and; all Locally Employed (LE) Staff regardless of hiring mechanism (whether a direct hire or hired on a PSA, PSC or other mechanism by the Department of State or another U.S. government agency – see 3 FAM 7121).

Snapshot: @StateDept COVID-19 Cases as of March 31, 2020 #newreportingsystem

 

On March 31, the State Department updated its running total of COVID-19 cases domestically and at overseas posts. The update also notes that it has a “new reporting systems for overseas posts” which apparently resulted in “additional detailed documentation of more cases on March 31.”
The updated numbers still do not include death data, and medical evacuation (MEDEVAC) data.
The day before, on March 30, State/MED’s Walters said during the briefing:

The department continues to sustain and protect our overseas workforce in over 200 locations around the world.  With a large employee footprint, nearly 75,000 employees, our current caseload overseas is only 75 cases – five hospitalized, all locally employedDomestically we have 30 cases in nine cities.  Most cities are single case or two cases.  We do not have a documented case of employee-to-employee transmission.  We’re watching very closely to that.  We’ve been very aggressive in identifying cases early, decontaminating or disinfecting any impacted spaces and getting those spaces back into operation to support State Department functions on behalf of the American people. 

When asked about “deaths among the State Department staff due to coronavirus”,  Dr. Walters responded:

So the department is aware of two locally employed staff – I don’t have locations and wouldn’t be able to provide further details – that have died overseas in their own country related to coronavirus.  I don’t have any further details that I can pass on.  There have been no deaths domestically or with any U.S. direct hires.  

We have noted elsewhere that the two deaths reference here occurred in Jakarta and Kinshasa. See Pompeo Reads the Data Set Every Morning But Can’t Get @StateDept COVID-19 Casualty Details Right.
As to the “30 cases in nine cities”, we have only counted six cities to-date, so we’re missing three cities at this time.
March 31, 2020 Update

 

March 27, 2020 Update

As of March 27, 2020

Related posts:

COVID-19 Tracker: State Department and Foreign Service Posts (March 25 Update)

 

We originally created a tracker for COVID-19 cases for the State Department and our Foreign Service posts on March 21. We updated that post on March 22. (See Tracking COVID-19 Cases at State Department and Foreign Service Posts (Updated)).
Since Pompeo’s quip at a presser on March 17  that “We’ve had a couple of employees – count them on one hand – who have positive tests” we still don’t have official breakdown of numbers as to how many employees and family members have actually been infected, how many have recovered from the virus, or even how many were tested, or how many have been medically evacuated for COVID-19.
The last couple of days even with Senior State Department officials doing their “Special Briefing”, we still don’t have a good official count on numbers and places where there are positive, suspected, or quarantined staffers/family members due to COVID-19 cases.
On March 23, SSDO said:

“So the domestic numbers are easier to quantify just based on communications with posts abroad.  Obviously, this is a rapidly evolving situation, especially in the overseas environment. I can tell you we’re still at single digits here in the United States with cases – one each, two each, three each in Washington; Houston; Boston; New York; Quantico, Virginia; and Seattle.  So the numbers themselves are – overseas are still double-digit.  We’re looking at less than 30 scattered over 220 posts around the world, and it remains a challenge. Obviously, the – this type of outbreak, had we known earlier what the epidemiology was and had some of that data, perhaps we would have a better feel for how this was going to move across our overseas posts.  But we are keeping pace with it.  And again, the number at this point is less than 30.” 

In our updated COVID-19 tracker we are noting this info as “fuzzy math.”
On March 24, the SSDO was asked “out of the approximately 40 or so cases of COVID-positive people that you’ve got at State, how many are FSOs and how many are local staff?”.  SSDO responded:

“In terms of the cases that we’re following from the State Department’s perspective, I don’t have the precise breakdown in front of me of how many of our direct-hire employees versus local staff.  I certainly can get that information.  But again, it changes so rapidly that it’s – we just want to focus on the fact that we’re doing everything we can to take care of our people overseas, and for our local staff who are so important to our operations do what we can to facilitate their getting care in the local economy. ” 

On March 25, Dr. William Walters, Deputy Chief Medical Officer for Operations was one of the briefers and said:

So it’s important to remember that the State Department is about 75,000 – a 75,000-person workforce overseas. We’re tracking 58 current cases in our overseas workforce, spread across the – each – one to 11 cases – I’m sorry, 33 cases is the largest number in any particular regional bureau. But at 58 cases, that’s less than one in 1,000, and that’s a direct result of aggressive actions through the Bureau of Medical Services, through the chiefs of mission at post, and implementing social distancing and telework and all the things that the department has been working so hard at over the past several weeks. Domestically, we’re tracking 16 cases in five cities, the largest at just eight. So that’s 16 cases across thousands of employees. Again, the department has taken this very seriously, has implemented just the right non-pharmaceutical interventions to keep that workforce safe.

Tracker is not embeddable right now, so the links do not work; however, we have links as reference and can post separately, as needed.  The newest addition in the update below includes the cases in Madrid, which we were originally informed were 6 positive cases, and now are at reportedly 16 positive cases. Also includes the fuzzy accounting from the March 24 briefing on domestic cases, and the presumptive positive case at SA-1 per internal email on the night of March 24. After we updated the tracker, we saw the March 25 briefing with MED”s Walters and CA’s Brownlee. Walter mentions “tracking 58 current cases” with 33 cases as the highest in one unnamed regional bureau, plus 16 cases in five unidentified cities domestically (3/23 briefing notes six cities).
We think that the fuzziness is intentional. It is very likely that MED (perhaps even Ops) has detailed trackers internal to those offices and could provide a straight-forward breakdown like DOD, if they want to. We’re hearing complaints of “no central info on cases department wide”. As of March 25, based on official briefers, domestic cases went from single digits on 3/23 to 16 domestically; and less than 30 on 3/23 to 58 overseas.