2013-028 Decision

Embed Size (px)

Citation preview

  • 8/10/2019 2013-028 Decision

    1/23

    BEFORE THE FOREIGN SERVICE GRIEVANCE BOARD

    In the Matter Between

    Record of Proceedings

    Grievant FSGB Case No. 2013-028

    and September 24, 2014

    Department of State DECISION

    _________________________________

    For the Foreign Service Grievance Board:

    Presiding Member: Susan R. Winfield

    Board Members: James E. Blanford

    Barbara C. Cummings

    Special Assistant Lisa K. Bucher

    Representative for the Grievant: Pro se

    Representative for the Department: Thomas M. LipovskiAttorney Advisor,

    HR/G

    Employee Exclusive Representative: American Foreign Service Association

    EXCISED

  • 8/10/2019 2013-028 Decision

    2/23

    Page 2 of 23 FSGB 2013-028

    OVERVIEW

    HELD: The Department committed a procedural error by placing in grievants OfficialPersonnel File (OPF) a prejudicial Inspectors Evaluation Report (IER) that included

    inadmissible comments about another identified employee, in violation of agency regulations,

    and without first counseling grievant on certain performance issues mentioned in the IER, orgiving her an opportunity to improve her performance. The IER was ordered expunged fromgrievants OPF in its entirety.

    SUMMARY

    Grievant, a former Ambassador to , appealed the Departments denial of her

    2013 grievance, claiming that an IER prepared in November 2011 focused primarily on theperformance of her DCM and contained several inaccurate statements. Grievant claimed that

    inclusion of the IER in her OPF was prejudicial because she had not received counseling on the

    areas of her performance that were criticized in the report. After soliciting feedback from postpersonnel, the Department expunged portions of two statements in the IER, but otherwise found

    the remainder to be an accurate reflection of grievants performance, as corroborated by

    numerous statements from identified Mission employees.

    The Board determined that grievant was not counseled on matters that were negatively discussed

    in the IER, nor was she given an opportunity to improve performance problems raised in the

    report. The Board concluded that regardless of the purpose for the IER, grievant was entitled tobe counseled and provided a reasonable opportunity to improve before she could properly be

    critiqued on performance deficiencies in an IER. The Board held further that grievant met her

    burden of proving that she was unaware of the shortcomings mentioned in the IER; she had no

    reason to become aware of these deficiencies; and, therefore, that counseling could not beexcused as harmless error. The Board further found that the IER contained a significant number

    of inadmissible comments about the performance of the DCM, an identified other employee, and

    was, therefore, written in violation of applicable regulations that govern the preparation ofevaluation reports. The Board concluded that the IER is invalid and ordered it removed from

    grievants OPF.

  • 8/10/2019 2013-028 Decision

    3/23

    Page 3 of 23 FSGB 2013-028

    DECISION

    I. THE GRIEVANCE

    On May 1, 2012, Ambassador (grievant) filed a grievance claiming that

    a November 12, 2011 Inspector Evaluation Report (IER), drafted while she served as Chief of

    Mission (COM) in , contained inaccurate and falsely prejudicial comments about

    her work performance; improperly focused on the performance of the Deputy Chief of Mission

    (DCM), rather than her own performance; and was the result of bias on the part of the Inspection

    Team Leader. On April 23, 2013, the Department issued its decision, expunging portions of two

    statements that grievant identified as inaccurate or falsely prejudicial, but denied grievants

    request to expunge the report in its entirety. On June 24, 2013, grievant appealed the agency-

    level decision to the Foreign Service Grievance Board (FSGB, Board), requesting that the Board

    order the IER to be removed from her official performance file (OPF); that if her file has been, or

    is reviewed for promotion with the offending IER included, that her OPF be forwarded to a

    reconstituted Selection Board without the IER; and that if grievant has been, or is low-ranked by

    a Selection Board that reviewed her file with the IER in the OPF, that the low-ranking be

    expunged from her file.

    Grievant filed a supplemental submission on October 4, 2013. After discovery was

    completed, the Agency submitted a response to the grievance appeal on April 10, 2014 and

    grievant submitted a rebuttal on May 21, 2014. The Record of Proceedings (ROP) was closed on

    June 18, 2014.

    II. BACKGROUND

    Grievant, a Foreign Service Officer with the U.S. Department of State since 1985, was

    appointed the U.S. Ambassador to in September 2010 where she served until August

  • 8/10/2019 2013-028 Decision

    4/23

  • 8/10/2019 2013-028 Decision

    5/23

    Page 5 of 23 FSGB 2013-028

    was not fully aware of the extent of the problems and had not effectively addressed the morale-

    damaging situation.

    The Ambassador filed a grievance, claiming that the IER contained inaccurate and falsely

    prejudicial statements and was the result of a negative bias on the part of the inspectors,

    particularly the OIG team leader. Grievant took issue with the following critical statements

    contained in the IER:

    1. . . . the failure of the Ambassador to ensure that the tone of the front

    offices communications with the rest of the embassy was alwaysprofessional and respectful has damaged her in the opinion of the

    community.

    2. . . . by not curbing her new DCMs propensity for micromanaging, she

    contributed to a decline in morale at a hardship post that cannot afford

    more stress.

    3. Although the Ambassador was aware from long acquaintanceship that

    the DCMs unvarnished and often demeaning style could give offense, she

    believed erroneously that the DCM was making progress in modulatingher tone, and did not take adequate steps to evaluate the DCMs

    performance and enforce professional standards.

    4. The Ambassador also did not fully realize that the DCMs aggressiveinterference in routine business was having a damaging effect on post

    morale as employees concluded that the front office did not trust them to

    do their jobs.

    5. The DCMs activities during the four months of her tenure in

    have caused a rift between the front office and the rest of the mission thatthe Ambassador is now struggling to bridge.

    The Department granted limited relief, modifying portions of two sentences in the IER:

    [re: sentence 3, above] The agency expunged the initial portion of the original sentence that

    read:

    Although the Ambassador was aware from long acquaintanceship that the

    DCMs unvarnished and often demeaning style could give offense,

  • 8/10/2019 2013-028 Decision

    6/23

    Page 6 of 23 FSGB 2013-028

    as well as the last few words of the sentence and enforce professional standards, leaving the

    sentence to read:

    The Ambassador believed erroneously that the DCM was making

    progress in modulating her tone, and did not take adequate steps toevaluate the DCMs performance[.]

    [re: sentence 5, above] The Department expunged the last portion of this sentence, that the

    Ambassador is now struggling to bridge, leaving the remainder to read:

    The DCMs activities during the four months of her tenure in have

    contributed to a rift that has developed between the front office and therest of the mission[.]

    The Department reaffirmed the remainder of the IER, citing numerous corroborating statements

    from Mission employees, either in their individual survey questionnaires or in interviews

    conducted during the inspectors visit. According to the agency, these employee statements

    supported the criticisms of grievants work performance that are contained in the IER.

    Grievant appealed the Departments decision to the FSGB requesting that the IER be

    expunged in its entirety because it contains inaccurate and falsely prejudicial comments and was

    the result of bias on the part of the OIG team, especially the team leader. In a supplemental

    filing, grievant added a complaint that the IER focuses on the behavior of the DCM, rather than

    her own performance, and that because she had never been counseled on the criticisms contained

    in the IER, it should be expunged.

    III. POSITIONS OF THE PARTIES

    A. GRIEVANT

    Grievant maintains that the OIG team did not give adequate weight to several

    demoralizing events that occurred at post shortly before their arrival. In the months immediately

    preceding the inspection, personnel issues at post had led to two separate investigations and

  • 8/10/2019 2013-028 Decision

    7/23

    Page 7 of 23 FSGB 2013-028

    extraordinary visits to post by representatives of the Departments Office of Civil Rights (OCR)

    and the Departments Diplomatic Security Office of Professional Responsibility (DS/PR). The

    two separate personnel matters resulted in a senior officer and another officer being involuntarily

    curtailed from post for inappropriate behavior. Another officer requested and obtained a

    compassionate curtailment that was granted. Both that officer and his wife, who also worked in

    the Mission, departed post abruptly. According to grievant, these multiple curtailments caused

    tumult among Embassy employees who, due to privacy and security concerns, could not be

    apprised of, or reassured about, the events that led to all of the curtailments. Grievant claims that

    the OIG team discounted the impact on morale caused by the investigations, sudden departures,

    and widespread employee speculation about these events, choosing instead to focus mainly on

    the behavior of the DCM as the cause of low morale.

    Grievant also asserts that even before arriving at post, the OIG team was biased by their

    reading of employee questionnaire survey responses.2 She contends that only 21 individuals (of

    a total of 79) responded to the OIG pre-inspection survey and of those, five were favorable to

    her. Grievant also maintains that the inspection team began the inspection with an adversarial

    approach that was evident from the antagonistic nature of their questions and the team leaders

    reluctance to meet with grievant regularly, as is normal practice during inspections. When

    grievant did finally meet with the OIG team leader, she claims that the focus of the conversation

    was the DCM and her performance. She reports that the team leader expressly stated that the

    OIG report recommendations were designed to force the DCMs curtailment, which ultimately

    occurred.

    2Grievant also points to the team leaders prejudice against grievants Office Management Specialist, because the

    team leader had worked with the OMS at a previous post.

  • 8/10/2019 2013-028 Decision

    8/23

    Page 8 of 23 FSGB 2013-028

    Grievant maintains that the criticisms of her in the IER were, in part, punitive and in

    retaliation for not agreeing with the harsh criticisms of the DCM and for initially resisting the

    DCMs immediate curtailment. Grievant also complains that during the two weeks the OIG

    team spent at post, team members refused to leave the compound at all, despite invitations to do

    so, which unfairly narrowed their perspective of the Mission and may have further biased their

    assessment of post morale.

    In response to the Departments assertion that there is a legal presumption of regularity

    that holds that in the absence of irrefragable evidence to the contrary, government officials are

    presumed to perform their duties correctly, fairly and in good faith, grievant questions why this

    presumption was not also applied to her and the manner in which she performed her official

    duties.

    Grievant points out that because most of the criticisms in the IER are focused on the

    DCM, rather than on her performance, the agency violated the regulations that govern the

    employee evaluation process and it is therefore improper to include the IER in her personnel file.

    She contends that the sentences lambasting the DCMs performance . . . should not be contained

    in my evaluation. Grievant then offers specific arguments and supporting statements from post

    employees as to why each of the negative statements in the IER is inaccurate and falsely

    prejudicial.3

    She lastly asserts that the IER is fundamentally unfair because she was never counseled

    on the issues raised in the report. To support her argument, grievant quotes Board precedent that

    counseling and the subsequent opportunity to address deficiencies is not just a procedural right,

    but also a substantive right. FSGB 2002-054 (June 17, 2003) at p. 18; FSGB 2008-012 (April

    3Because of the disposition of this appeal, we do not recite or address in any detail the parties arguments for and

    against each of the contested statements in the IER.

  • 8/10/2019 2013-028 Decision

    9/23

    Page 9 of 23 FSGB 2013-028

    17, 2009). Recognizing that the last cited case referred to a corrective IER,grievant maintains

    that the Board should apply the right to counseling broadly to all IERs, regardless of whether

    they are deemed corrective or standard.

    Grievant contends that there is no basis on which to conclude that she should have been

    aware of the shortcomings mentioned in the IER, which might obviate the need for counseling.

    She asserts that her supervisors, specifically the Deputy Assistant Secretary (DAS) of her

    regional bureau )) and the Office Director4responsible

    for her post, had an opportunity to counsel her when they visited the Embassy and met with

    many of the staff in October 2011, one month before the inspection team arrived. She states that

    neither of these supervisors counseled her on her management, leadership, or interpersonal skills,

    or on any of the specific issues raised by the OIG inspectors in the IER. According to grievant,

    her performance feedback was consistently positive. She states that her most recent Employee

    Evaluation Report (EER) prior to the inspection commended her for strong leadership and

    management skills. In addition, she states that when the OCR conducted an investigation into

    post morale (also in October 2011) and briefed the Executive Director on its findings,

    neither the OCR representative nor the Executive Director counseled her on her work

    performance, including any failure to discover alleged difficulties between Embassy staff and the

    DCM or her OMS. On another occasion, grievant states, the DAS acknowledged that the

    bureau did not inform either the DCM or grievant until March 2012 of complaints that had been

    lodged in the fall of 2011 by entry level officers about the lack of an effective mentoring

    program at post.

    Grievant concludes that it is unfair for the Department to hold her to one standard for

    counseling -- i.e., that she was obligated to discover performance problems in her subordinates

    4

  • 8/10/2019 2013-028 Decision

    10/23

    Page 10 of 23 FSGB 2013-028

    and counsel them appropriatelywhile not holding her bureau supervisors to the same standard

    of giving her notice of perceived shortcomings and counseling her. At post, grievant claims it

    was the responsibility of the management officer (MO) to alert her to issues regarding the

    performance of the DCM, but the MO never informed her that there was a problem.

    Finally, grievant argues that the performance deficiencies noted in the IER have

    significantly damaged her reputation, eligibility for promotion and competitiveness for future

    assignments. She contends that since the OIG has decided to stop issuing IERs as part of the

    post inspection process, and since the IER at issue here is one of the last to be produced, it is

    especially unfair to include it in her OPF because she will be disadvantaged when she competes

    for assignments and promotions if her file is compared with those of other candidates at her

    grade who do not have IERs in their records.

    B. THE AGENCY

    The Department asserts that it conducted an extensive investigation into the challenged

    statements in the IER and maintains that each statement is fully supported by credible statements

    from identified post employees; therefore, the criticisms may be appropriately included in the

    report. The agency argues that grievants claims are without merit and she has not provided

    sufficient proof that the IER statements regarding her performance are inaccurate. The agency

    also asserts that grievant has not shown that the statements in the IER that address the DCMs

    performance were inaccurate or were improperly included in the report.

    The Department also contends that grievant does not establish that the OIG team leader

    or the inspectors were biased and has not met her burden of proving that the team leader failed to

    perform her duties correctly, fairly, and in good faith, and in accordance with the law and

  • 8/10/2019 2013-028 Decision

    11/23

    Page 11 of 23 FSGB 2013-028

    governing regulations.5 The Department quotes the team leader that: [she] had no pre-

    conceived opinion of the front office before arriving [at post] for the inspection. The agency

    also states that the team leader had no previous association with either the grievant or the DCM

    and had not formed an opinion of either before conducting the inspection. The OIG team

    members stated that they were surprised by the degree of employee unhappiness they

    encountered at post. The Department also contends that grievant's impression that the team

    leader was avoiding a direct meeting with her and that the team adopted an adversarial approach

    to the inspection are both unsupported by the facts. As such, the agency concludes, grievant has

    not presented evidence that would establish bias on the part of the OIG team or its leader.

    The Department also argues that grievant has not proved that any of the challenged

    statements in the IER are inaccurate or falsely prejudicial. Moreover, even if grievant has

    presented sufficient evidence to call into question the accuracy of the challenged IER criticisms,

    the Department claims that it has produced ample corroboration from named sources to

    demonstrate a substantial substantive basis for each of the comments. The agency then

    responds to each of grievants arguments about each challenged statement in the IER and cites

    numerous comments from post employees that it claims corroborate each statement.

    On the issue of counseling, the Department maintains that grievant was not entitled to

    counseling because she received a standard IER rather than a "corrective" one, designed to

    amend a previous EER. The agency argues that in the same case relied upon by grievant, FSGB

    Case No. 2008-012,supra, the Board specifically distinguished a standard IER from a corrective

    IER. The Board held that since a corrective IER is meant to amend a prior EER, it should have

    the same requirements for counseling and an opportunity to improve as that of the EER. The

    same was not determined to apply to standard IERs.

    5LaChance v White, 174 F. 3d 1378 (Fed. Cir. 1999).

  • 8/10/2019 2013-028 Decision

    12/23

    Page 12 of 23 FSGB 2013-028

    The Department argues that a standard IER does not compare to an EER or a corrective

    IER and, therefore, does not require provision of the same procedural rights for an employee as

    in the regular EER process, and by extension, the corrective IER process. The agency also cites

    FSGB Case No. 2010-031 (April 4, 2011) that defines a standard IER as an evaluation tool . . .

    intended to focus on the rated officers skills and abilities to manage . . .personnel that is used

    to rate the employees suitability for advancement to greater responsibilities. The agency

    argues that because the standard IER at issue here was not intended to correct or amend a prior

    EER, there was no necessity to counsel grievant about deficiencies raised in the IER.

    The Department further argues that the circumstances of this case do not support

    grievants right to counseling because her superiors were not aware of the performance issues

    raised in the IER. The agency cites FSGB Case No. 2008-012,supra, for the principle that a

    grievant does not have a right to be counseled about performance deficiencies, where it can be

    shown that senior management at the embassy . . . neither knew nor should have known through

    reasonable diligence of the deficiency. That . . . would present a different case.6 The

    Department maintains that grievant was not entitled to be counseled because she has not

    provided evidence that her supervisors knew or should have known about the criticisms of her

    performance that are mentioned in the IER. Grievant has not shown that her superiors personally

    observed any of the problems at post, or were informed by any of the individuals at the Embassy

    about management and morale issues at post.

    Finally, the agency contends that grievant should have been aware of the concerns raised

    by the OIG inspectors; and, therefore, the lack of counseling was, at most, harmless error. The

    Department quotes from FSGB Case No. 2010-031,supra, in which the Board stated:

    6Ibid. at page 43.

  • 8/10/2019 2013-028 Decision

    13/23

    Page 13 of 23 FSGB 2013-028

    Had grievant known (or should [ ] have known) of the deficiencies [in an

    IER], the Board suggested that it would have considered the failure to

    counsel argument to be harmless error.

    The Department then references numerous statements by individuals at the Embassy to

    show that grievant knew or should have known of the problems raised in the IER. These

    employees indicated their beliefs and assumptions that grievant was aware of the interpersonal

    problems of her OMS and the DCM and the effect they were having on post morale. Several

    employees commented on the physical closeness of grievants office to her OMS and the DCMs

    office and the way sound carried in the relatively close space as reasons why they surmised that

    grievant must have been aware of abusive communications between the OMS and the DCM with

    others in the Mission. None of the individuals who were quoted by the Department reported that

    grievant took any action to correct the behaviors detailed in the IER. The agency concludes that

    at a minimum, grievant should have known of her performance deficiencies that were mentioned

    in the IER and, therefore, the failure to counsel her on these issues should be considered

    harmless error.

    IV. DISCUSSION AND FINDINGS

    In all grievances, except those involving discipline, the grievant bears the burden of

    showing by a preponderance of the evidence that the grievance is meritorious. 22 CFR

    905.1(a). The burden of proof in this case requires grievant to establish by preponderant

    evidence that the IER contains falsely prejudicial or inaccurate material.

    In the instant case, grievant argues that the 2011 IER prepared for her performance as

    COM in contains several statements that are inaccurate and falsely prejudicial; the report

    improperly focuses more on the performance of the DCM than her own; the report was allegedly

    the product of a biased inspection team; and inclusion of the report in her OPF violates her due

  • 8/10/2019 2013-028 Decision

    14/23

    Page 14 of 23 FSGB 2013-028

    process rights because she was not counseled on the performance deficiencies that were reported

    in the IER and she was not given a reasonable opportunity to improve before the criticisms were

    included in an evaluative document.

    In FSGB Case No. 2008-012,supra, this Board held that where a grievant presents

    significant and tangible evidence that contradicts statements in an IER, due process requires that

    the agency present independent substantive evidence from sources waiving confidentiality to

    support the challenged statements; failing which, the uncorroborated statements must be

    expunged. Id.at pp. 20-21; see also, Section 105(b)(4) of the Foreign Service Act, 22 U.S.C.

    3905, which states that a goal of the Act is to strengthen and improve the Foreign Service by

    maintaining a fair and effective system for the resolution of individual

    grievances that will ensure the fullest measure of due process for the

    members of the Foreign Service.

    In the instant case, grievant presents a few statements by post employees that contradict

    some of the comments in the IER. In response, the Department offers statements from known

    sources that it claims corroborate each of the statements in the IER. We do not discuss each of

    the contested statements in detail here because we hold that the IER would have to be redacted to

    exclude inadmissible comments identifying another official; however, it must be expunged in its

    entirety because the agency failed to counsel grievant on the deficiencies noted in the report.

    (See discussions below.)

    On the issue of bias, we are not persuaded that grievant presents sufficient evidence that

    the OIG team was biased. Although grievant may have interpreted the manner in which the team

    conducted the inspection as indicative of bias, she presents no evidence that any of the inspectors

    actually had any predisposition against her, the post, or any other employee at the Embassy. The

    most grievant offers is: a statement that the team leader and grievants OMS served together

  • 8/10/2019 2013-028 Decision

    15/23

    Page 15 of 23 FSGB 2013-028

    previously at another post; a claim that the team leader resisted meeting with her until the

    inspection was nearly completed; and the fact that the team declined offers to leave the

    compound to accompany grievant to meetings. These facts are not sufficient to establish that

    bias colored the facts or conclusions in the IER in any way. We conclude that grievant has failed

    to provide preponderant evidence that the IER reflected bias on the part of the OIG inspection

    team, including the team leader.

    Grievant also asserts that several of the allegedly corroborative statements from

    members of the embassy community were the product of long-standing and sometimes unrelated

    animus on the part of the individuals queried. We conclude, however, that grievants evidence

    of animus is no more than her assessment of possible motives behind the statements, not their

    accuracy. Moreover, for every claim of individual animus, the Department offers a number of

    statements from a cross-section of the Mission community that corroborates the accuracy of each

    challenged statement.

    What remains are grievants claims that the IER improperly focused on the performance

    of the DCM and a claim that she had a right to counseling prior to inclusion of negative

    statements in her IER. As to her complaint about the focus of the IER, grievant points out that

    although the report was meant to address her management and leadership skills, it is largely

    directed at the DCMs behavior and contains several comments that did not pertain at all to her

    performance. We find that what was at issue in the inspection was grievants alleged lack of

    awareness of, and inattentiveness to, the negative effect on post morale that was purportedly

    caused by the behavior of her subordinates. Because the concern was how well or poorly

    grievant was performing as Chief of Mission, we find that the IER should have focused on

  • 8/10/2019 2013-028 Decision

    16/23

    Page 16 of 23 FSGB 2013-028

    grievants performance vis--vis her detection and management of post problems caused by a

    subordinate.

    At the same time, the regulations are clear: it is inadmissible to include in an IER

    negative or pejorative comments about the performance of another identifiable member of the

    Service. 3 FAM 2815.1 (b) (15). An example of this form of inadmissible comment is provided

    in the regulation: Rater cannot state[:] The member quickly brought order out of chaos left by

    the members predecessor. In the IER in the instant case, thereare numerous pejorative

    statements about the DCM, who is identified much more specifically than in the example

    provided in the regulation (the members predecessor). She is identified by her current

    position title, her post and the date of the assignment. Since there is at any point in time, only

    one DCM at a given post, the identification of the DCM in this case could not have been clearer

    without her name being revealed. Moreover, the pejorative comments about the DCM are harsh,

    including:

    o . . . new DCMs propensity for micromanaging;

    o

    [T]he front office, most particularly the DCM, had frequently been dismissive,

    intemperate, and unprofessional in both oral and written communication to mission

    personnel;

    o The Ambassador believed erroneously thatthe DCM was making progress in

    modulating her tone;

    o . . . the DCMs aggressive interference in routine business was having a damaging

    effect on post morale as employees concluded that the front office did not trust them

    to do their jobs;

    o

    The DCMs activities during the four months of her tenure in have caused a

    rift between the front office and the rest of the mission; and

    o [T]he Ambassador worked with the DCM on a plan to ensure correct professional

    communications and to reset frayed relationships with embassy staff.

  • 8/10/2019 2013-028 Decision

    17/23

    Page 17 of 23 FSGB 2013-028

    In FSGB Case No. 2000-079 (October 5, 2001), the Board held that an IER that violated

    regulations (inclusion of confidential information) was inherently invalid and ordered it

    expunged. Id. at p. 35. In this instance, we conclude that the IER violates Department

    regulations because what is intended to be an evaluation of grievantsperformance repeatedly

    identifies the DCM and criticizes her in numerous inadmissible comments. For this reason, but

    for the conclusions that follow regarding the failure to counsel grievant, we would order that the

    IER be redacted to replace every reference to the DCM with the phrase a senior official.

    With regard to the counseling issue, this Board recognizes that in certain circumstances,

    an employee must be counseled and given an opportunity to improve before he or she can be

    officially criticized for that performance. FSGB Case No. 2002-054,supra, at p. 18; FSGB Case

    No. 2008-006, at 12 (December 31, 2008) (a grievant [is] entitled to counseling and an

    opportunity to improve before having his career derailed by . . . perceived deficiencies); FSGB

    Case No. 2008-012,supra, (Counseling with an opportunity to improve is the bedrock of the

    performance evaluation system in the Foreign Service). As part of the routine employee

    evaluation process, counseling is required at least twice during a normal rating period and is

    intended to ensure that the rated employee is apprised of how well he/she is meeting his/her

    established work requirements. See,3 FAH-1 H-2242. Instructions for completion of an EER

    state that [c]riticisms included in the final EER should not come as a surprise to the rated

    employee.7

    The Board has held that in some instances, a recipient of an IER may be entitled to the

    same counseling rights and opportunity to improve that apply to EER recipients. FSGB Case

    No. 2008-012,supra. (There is no functional difference between a corrective IER and an EER

    when it comes to the requirement that the employee receive adequate counseling and an

    73 FAH-1 H-2810, Instructions for Form DS-5055 Employee Evaluation.

  • 8/10/2019 2013-028 Decision

    18/23

    Page 18 of 23 FSGB 2013-028

    opportunity to improve his/her performance.) Although the cited case specifically addressed a

    counseling requirement necessitated by a corrective IER, the Board did not preclude this right

    from extending to a standard IER.

    IERs generally are the product of OIG periodic inspections of posts abroad. 1 FAM

    055.6 defines and describes the IER process, providing in part:

    a. Inspection team leaders, normally of ambassadorial rank, may prepare, inconnection with each post abroad or domestic inspection, an inspectors

    evaluation report (IER) on all career and noncareer chiefs of mission

    (COMs), permanent chargs, deputy chiefs of mission (DCMs), principal

    officers (POs), Assistant Secretaries, and deputy assistant secretaries whohave been in their position more than 120 days (see3 FAM 2813.5).

    8

    b. If an IER is prepared, it will be directly related to the officers management

    or supervision of the unit or post being inspected and will make up a part

    of the independent review of the operation being evaluated.

    c. IERs may evaluate the officer in any area of his or her responsibility, but

    will focus on their skills and abilities in managing personnel, budgets,

    resources, and programs. IER procedures allow for formal comment by

    the rated officer as part of the evaluation report.

    * * *

    g. Upon receiving an IER from the inspection team, OIG/ISP designates a

    panel of three active or retired ambassadors who have been seniorinspectors to review the IER. Once approved, the panel sends the IER to

    the Inspector General. In the case of a career employee, the InspectorGeneral sends it with a memorandum to the Director General of the

    Foreign Service, requesting that it be placed in the rated officers official

    performance evaluation file.9

    83 FAM 2813.5-1 states:

    Inspectors will prepare Inspectors Evaluation Reports (IERs) on senior officers (chiefs of

    mission, permanent chargs, deputy chiefs of mission, principal officers, Assistant

    Secretaries and deputy assistant secretaries) in connection with each post or bureau

    inspection. These IERs will be related directly to the officers management orsupervision of the domestic unit or post abroad being inspected and will constitute a part

    of the independent review of the operation being evaluated. They will focus on the skills

    and abilities of rated officers to manage personnel, budgets, resources, and programs.

    Both career and noncareer officers will be evaluated.

    (Emphasis in original).

    9See also, 3 FAM 2813.5-4 that provides that after completion of the IER:

    http://fam.a.state.gov/fam/03fam/03fam2810.html#M2813_5http://fam.a.state.gov/fam/03fam/03fam2810.html#M2813_5
  • 8/10/2019 2013-028 Decision

    19/23

    Page 19 of 23 FSGB 2013-028

    These regulatory provisions makes clear that an IER, in addition to being a routine inspection of

    post operations, is intended to be an evaluative report of Mission managers, including the

    Ambassador, that may ultimately be included, along with other evaluative reports, in their OPFs.

    Any IER, whether issued to correct a previous EER or issued as a result of a routine post

    inspection, includes an evaluation of the performance of post supervisory personnel. It follows,

    then, that the same procedural fairness that is required for issuance of an EER should also attend

    the issuance of any IER. We think the rule of fundamental fairness applies equally when the

    performance of an Ambassador is evaluated in an IER, as when an untenured officer receives his

    first EER. We conclude that [c]riticisms included in the final [evaluation report] should not

    come as a surprise to [any] rated employee. Accordingly, because we see no difference

    between the impact of performance criticisms in an EER and an IER on an employees career

    opportunities, we conclude that any employee whose work performance is evaluated in an IER,

    as in an EER, has a right to be notified and counseled about any perceived deficiencies and given

    a reasonable opportunity to improve before those deficiencies may be included in either

    evaluative document.

    The parties do not contest that grievant received no counseling about any of the criticisms

    about her performance that were stated in the IER at issue. Grievant presented evidence that

    shortly before the OIG began its inspection at post in November 2011, the DAS from the

    regional bureau ( and the Office Director visited and met with Mission

    employees in October. It is unclear whether these individuals received the same information as

    a.

    The original and one copy of the final IER will be forwarded by the Inspector

    General to the Director General for inclusion in the rated offic ers Official Personnel

    Folder. The Director General retains the authority and responsibility for

    determining admissibility of an IER to an officers personnel folder.

    (Emphasis added.) The parties seem to agree that the Director General has determined that the IER in this case

    should be, and has been, included in grievants OPF.

  • 8/10/2019 2013-028 Decision

    20/23

    Page 20 of 23 FSGB 2013-028

    the OIG team, but grievant reports that neither of them counseled her on any of the matters later

    identified as performance weaknessesby the OIG team. If grievants superiors were made aware

    of any shortcomings in her work performance, then they should have, but did not, counsel her

    about them. If they were unaware of any performance deficiencies, then the Department must

    concede that grievants superiors could not, and did not, counsel her. In the absence of

    counseling, grievant did not have the opportunity to try to improve.

    The Department argues that grievant was not entitled to be counseled on matters about

    which her supervisors were not aware. We do not agree. The fundamental fairness of a

    performance evaluation hinges on the provision of notice to the rated employee of his or her

    deficiencies, coupled with a reasonable period in which the employee can make efforts to

    improve. If a supervisor is unaware of the deficiencies, it is true that he or she cannot counsel

    the employee, but, it follows, then, that, unless the employee was independently aware of

    performance deficiencies, he or she ought not be negatively evaluated on those deficiencies of

    which neither the employee nor the supervisor were aware.

    The Department also asserts that even in the absence of counseling, the criticisms

    contained in grievants IER should not have come as a surprise to her because she should have

    known of the morale problems existing at post. In support of this assertion, the Department

    provides numerous statements from Mission employees expressing their beliefs that grievant was

    aware of the problems raised in the IER, but failed to manage them.10

    Grievant responds that not

    10These statements include the following comments:

    o There is no way she didnt know we lived and worked on a tiny compound. Nothing was secret.

    o [I]t is my firm belief that Ambassador was fully aware of [the DCMs] aggressive style and

    chose to ignore it. On many occasions . . . [the DCM] related the Ambassadors wishes. . . .Therefore I

    cannot believe that the Ambassador wasnt fully aware of [the] DCMs actions.

  • 8/10/2019 2013-028 Decision

    21/23

    Page 21 of 23 FSGB 2013-028

    only did her supervisors not tell her of the employees complaints, but the employees themselves

    did not inform her. She speculates that [i]n hindsight, I recognize that the DCM may have been

    shielding and insulating me from staff dissatisfaction. She also cites a number of employees

    who stated that they did not think she was aware of how the DCM was behaving or how it was

    undermining morale.11

    The Department does not respond with information that employees

    brought their concerns directly to the Ambassador.

    Upon review of these statements, we are persuaded that grievant was surprised by the

    negative statements in the IER. While she admits that she was aware of morale issues at post,

    she attributed those issues to several impactful events that had occurred just prior to the

    inspection and that were far different from those that were identified by the OIG inspection team.

    Grievant admits that she was aware of certain interpersonal weaknesses in her OMS and the

    DCM, but she strongly disagreed with the OIG focus on her subordinates as the primary cause of

    o I do believe Ambassador was aware that DCM activities were exacerbating the rift

    between the front office and the rest of the mission, but I believe it was a type of willful unawareness,

    perhaps delusional. . . . If [the Ambassador] was not aware or not willing to admit that this rift existed, she

    was deluding herself. . . . [In All Hands meetings] . . . to the Ambassador, this kumbaya session was clearevidence that she had her finger on the pulse of the mission. It was a charade, but no one could tell the

    emperor that he had no clothes.11Grievant submitted the following statements from post employees:

    - I think she didnt realize the impact the DCM was causing till [sic] the OIG arrived. . . .

    - I dont know if she recognized the seriousness of the problems or not. . . . I dont know if the Ambassador

    was aware of them or not.

    -

    I believe that Ambassador did not fully recognize the seriousness of problems at Embassy

    If she had recognized the seriousness of the problems, I believe that she would have addressed

    them in the beginning and not let things get so out of hand.

    Even the OIG inspection team leader wrote:

    showed little awareness of the significant impact on morale cause by front office

    management practices and actions. She was not aware of the extent of negative sentiment

    concerning front office communications, nor the depth of employee resentment of the intrusive

    and imperious management style of the DCM. Although scheduled and conducted

    numerous regular meetings with employees, staff members told inspectors they volunteered little

    real feedback to the front office, fearing the reaction and the subsequent damage to their careers.

  • 8/10/2019 2013-028 Decision

    22/23

    Page 22 of 23 FSGB 2013-028

    low-morale. Most telling is that when the IER team counseled grievant on the issues they

    uncovered, everyone agrees that she took immediate and effective steps to manage and quell the

    problems. We believe that had grievant received counseling earlier, she would have taken the

    same steps sooner, with the same positive outcome. We conclude, then, that the IER process was

    flawed because grievant was unaware of the performance shortcomings that were identified in

    the process and because she received no advance counseling on any concerns about her

    management or leadership skills prior to issuance of the IER.12

    V. DECISION

    The Board orders that the November 12, 2011 IER be expunged in its entirety from

    grievants OPF. If grievants file has been, or is, reviewed by a promotion panel before the IER

    is removed, and grievant is not recommended for promotion, a reconstituted promotion board is

    ordered. If grievant has been low-ranked as a result of the inclusion of this IER in her OPF, the

    Department is directed to rescind the low-ranking.

    For the Foreign Service Grievance Board:

    __ __

    Susan R. WinfieldPresiding Member

    12Because of our findings, we take no position on grievants argument that she is prejudiced by inclusion of the

    IER in her OPF based on the reported discontinuance of the practice of issuing IERs for Principal Officers as part of

    a routine post inspection. It is unclear what impact the discontinued practice will have on those post managers who

    have IERs in their performance folders when compared for performance purposes with those who do not.

  • 8/10/2019 2013-028 Decision

    23/23

    Page 23 of 23 FSGB 2013-028

    James E. Blanford

    Member

    Barbara C. Cummings

    Member