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Updated April 2014
Click on one of the links below to jump down to its corresponding section:
- Common Types of Grievances
- The Grievance Process
- Grievance Communications
Unfortunately, in a personnel system such as the Foreign Service, agency actions can occur which seem unfair or improper to an employee. In many cases, the problem can be solved informally through discussion with a supervisor. If not, the individual may have grounds for a grievance. This can be a complicated and emotionally draining process, especially when the individual is overseas.
The Foreign Service grievance system is established by law as part of the Foreign Service Act of 1980, 22 U.S.C. 3901 (as amended). The implementing regulations, which were negotiated between the foreign affairs agencies and AFSA, can be found in 3 FAM 4400.
A grievance is broadly defined as follows: any act or condition subject to the control of a foreign affairs agency which allegedly deprives an employee of a right or benefit authorized by law or regulation or is otherwise a source of concern or dissatisfaction. For example, an employee might grieve that an evaluation is flawed or that a benefit was denied in violation of a law or regulation. Any discriminatory practice based on race, color, religion, sex, national origin, sexual orientation, age, or handicapping condition can also be addressed through the grievance process.
Any Foreign Service employee who is a U.S. citizen may file a grievance. However, individuals who are no longer Foreign Service members through resignation, retirement, or separation may only grieve the denial of a financial benefit. In the case of death of a Foreign Service employee, family members may grieve a financial claim.
Every effort should be made to settle a complaint informally before taking steps to submit a formal grievance. AFSA can be very helpful at this stage. In addition, all potential grievants should review the grievance regulations prior to filing, paying particular attention to the sections on filing deadlines and grievable issues. AFSA grievance attorneys and counselors are available to assist members with their cases throughout the grievance process. Due to resource limitations, however, AFSA is not always in a position to perform a full range of legal research or type or file the actual grievance. We expect employees to take a serious, substantive role in their grievances.
For employees who have chosen not to be members of AFSA, our help is generally limited to providing the AFSA grievance guidelines and general advice regarding grievance procedures. Generally, this involves one initial consultation followed by referral to private attorneys, if appropriate.
If an individual wishes to retain a private attorney to represent him or her, AFSA can provide the employee with a lawyer referral list. These attorneys are located in the Washington, D.C. area, and have experience in representing Foreign Service employees. AFSA cannot, however, endorse or guarantee their services.
II. Common Types of Grievances
Unfair Performance Evaluations
Probably the most frequent cause of complaints in the grievance system is the unfairness which Foreign Service employees often perceive in the evaluations periodically written on their performance. A performance appraisal or Employee Evaluation Report (EER)1 may be grieved on the grounds that it is allegedly inaccurate, falsely prejudicial, and/or contains errors of omission that present a false picture of the employee's performance. Falsity, either in fact or in characterization of the performance, must always be demonstrated. The employee also might want to give an overview of any situation affecting the appraisal (e.g. the employee's relationship with the rater/reviewer or events leading to strains in that relationship).
Performance evaluations are official documents, and a rater's comments are presumed to be correct. The burden is on the grievant to overcome that presumption. The legal standard is "by a preponderance of the evidence." Inaccurate statements may be rebutted on the basis of fact and documentation. For example, if the rater states that the employee was not effectively communicating in a foreign language, and the employee can show that he/she has a 3/3 rating in that language, the rater's statement could be discounted. If the rater did not include relevant information, or the EER lacked balance, the grievant could argue that a material error of omission had taken place.
Procedural violations in preparing an evaluation report are also grievable. This would include, in State, violations such as: a Work Requirements Statement that was not prepared within the requisite 45-day time period, an evaluation report not prepared within 30 days of a change of rater or assignment, or non-compliance with special provisions for preparing career candidate reports under the Career Candidate Program. (There are variations on these themes in the other Foreign Affairs agencies.) Grievants should review applicable FAM chapters and other agency regulations to determine whether a procedural violation occurred in the preparation of the evaluation. However, a word of caution is in order here: Although grievable, these technical violations are generally not sufficient to get the report expunged unless the grievant can show how the violation harmed him or her. The question comes down to be: "was the error harmless or might it have been harmful?"
Separation for Poor Performance
Employees facing involuntary separation by a Performance Standards Board (PSB) after a finding of failure to meet the standards of his/her class may either appeal to a Special Review Board (SRB) or file a grievance with the agency. An employee may not use both routes.
Based on our experience, we generally advise that employees choose the grievance process. In an SRB appeal, the case is decided before the employee's designated separation date (although in some instances additional time is required to enable an employee to present a complete and documented case). The result is a process that, on the whole, is more expeditious than the grievance system. However, unlike the grievance system, there is no administrative appeal from an SRB decision.
In overturning a selection-out recommendation, an SRB may recommend further remedial action, but there is no guarantee this will happen. For example, if an SRB finds that a falsely prejudicial EER was the basis for selection out, it might overturn the selection-out decision but fail to request removal of the EER from the performance file. Consequently, an employee may later be designated for selection out on the same basis as the earlier determination. The grievance process is better adapted to correcting such problems.
There are rare instances where a selection out is more appropriately appealed before an SRB because its scope of review generally extends beyond that of the grievance process. For example, suppose that an employee receives a damaging but accurate evaluation, but he/she establishes that because of personal hardships or a medical condition now under control, this was a one-time occurrence not likely to recur. The SRB may set aside the selection-out on the basis that severe or extraordinary circumstances temporarily affected the employee's performance. The grievance system is less likely to achieve such a result.
AFSA recommends that employees taking their case before an SRB retain the services of a private attorney. An SRB review involves an oral hearing before a multi-member panel comprised of Foreign Service employees and an administrative law judge. It also requires a high level of organization and preparation in a relatively short period of time. With a grievance, the review and decision on the merits is often based solely on written materials submitted by the employee. In other words, the grievance process is primarily carried out on paper, whereas an SRB review involves an oral hearing. Note, however, that in most forcible separation grievances the employee has the right to an oral hearing before the Foreign Service Grievance Board. Careful consideration must be given to weighing the pros and cons of an oral hearing vis-à-vis relying on written submissions. AFSA can help employees sort through the alternatives.
If an employee wishes to file a complaint alleging discriminatory practices based on race, color, religion, sex, national origin, sexual orientation, age, or handicapping condition, the matter can be addressed either through the agency's EEO office or through the Foreign Service grievance process, but not both. Only a careful analysis of the complaint and remedies sought will establish the best forum for the complaint. We advise that employees consult an EEO counselor and AFSA before proceeding in such a case.
The regulations guiding the EEO process are outlined in 3 FAM 1500. (AFSA also has written guidance regarding EEO cases.) The time limits for filing an EEO complaint are very strict. In order to file a complaint through the agency's EEO office, an employee must contact an EEO counselor within 45 days of the alleged discriminatory event. For further information regarding time deadlines, election of remedies, etc., please contact an EEO counselor or AFSA.
Employees who choose to file an EEO case (other than one alleging sexual orientation discrimination) through the Foreign Service grievance process must file within 180 days of the discriminatory event. If the event occurred while the employed was assigned overseas, the employee must file within 180 days of the expiration of the assignment or within 24 months after the event, whichever is earlier. (Exceptions to these time limits are very narrowly defined by case law.) Employees who wish to grieve sexual orientation discrimination must file the grievance within the general statute of limitation for non-EEO grievances (generally two years but see the discussion below).
Although the disciplinary procedures of the foreign affairs agencies (found in 3 FAM 4300) are separate from the grievance process, employees should be aware that a proposed reprimand or suspension without pay may be grieved before being finally implemented. This can have the effect of suspending the disciplinary action until the grievance is adjudicated. (Different rules apply to separation for cause cases. These are discussed below.) The reprimand or suspension without pay must be finally decided by the agency so that the discipline is ready to be carried out before the grievance process is invoked. The employee then may file a grievance seeking relief from the impending action and should do so within 30 days after receiving the final agency decision to achieve suspension of the discipline during the grievance proceedings. The grievance is submitted at the agency level under the usual grievance procedures.
Separation for cause cases are governed by different rules. A 1999 amendment to the Foreign Service Act required the foreign affairs agencies to place Foreign Service employees slated for separation for cause on leave without pay (LWOP) pending final resolution. If the employee requests a hearing by the Foreign Service Grievance Board, the agency's decision to separate is sent to the FSGB, skipping the usual agency level of the grievance process. The Board rules on the case after conducting an oral hearing. However, the employee may waive the right to this hearing and ruling, thereby accepting the separation. (The specific terms of the separation may in some cases still be negotiated with the agency.) Another amendment to the Act completely removed the Grievance Board's jurisdiction in certain separation for cause cases (i.e. where the underlying misconduct involves a criminal conviction for which a sentence of imprisonment of more than one year may be imposed). In these cases, once the agency decides to separate the employee, the employee may only challenge the action in federal court.
A unique feature of disciplinary grievances and separation for cause cases is that the agency has the burden of proof, unlike other types of grievances where the grievant must carry this burden. The agency must show by a preponderance of the evidence (the greater weight of evidence) that the proposed action is justified.
Financial claims stand alone as the only type of grievance that can be filed after the grievant leaves the Foreign Service. Both active and former members of the Service may submit financial grievances. However, only certain kinds of monetary claims may be adjudicated through the grievance system. Employees with specific questions should contact AFSA for assistance in determining the appropriate forum for their claim. Note, though, that the "financial claims" rubric does not serve as a device to get a regular subject matter grievance into the grievance process after an employee's separation. Designation for selection out or non-promotion, for example, may not be grieved as a financial claim on the basis that such actions have an impact on one's salary.
The Foreign Service Act permits employees to grieve an "alleged denial of an allowance, premium pay, or other financial benefit to which the member claims entitlement under applicable laws or regulations". For example, if an employee has been denied a claim due to improper application of the Foreign Service travel regulations, then he/she may file a grievance alleging that the regulations have been improperly applied. However, if the employee believes the regulations were properly applied but seeks an exception for reasons of hardship or general equity, he or she should contact the Committee on Exceptions to Foreign Service Travel Regulations.
The Grievance Board does not have jurisdiction to adjudicate claims under the Military Personnel and Civilian Employees' Claims Act ("the Claims Act"), 31 U.S.C. 3721. This law authorizes agencies to settle claims by U.S. Government employees for loss or damage to personal property (such as household effects) incident to their government service. Under the statute's terms, the agency's decision in this type of case is final and conclusive and the grievance system has no jurisdiction to hear an appeal.
III. The Grievance Process
Statute of Limitations
While trying initially to resolve a complaint through informal means, an employee should also consult 3 FAM 4427 at an early stage to make sure that the time limit for submitting a grievance does not lapse. There is a two-year statute of limitations for filing non-EEO grievances. A grievance will be forever barred if it is filed more than two years after (a) the event being grieved or (b) the issuance date of a document being grieved. However, there is a special provision for grievances involving performance evaluations. For these types of grievances, the employee may wait to file a grievance until one year after the date on which he or she is no longer supervised by the rating or reviewing officer who wrote the evaluation passages that are being grieved. Thus, the applicable time limit is either two years or this special period, whichever ends later. In no case, however, may the time limit exceed three years from the date the evaluation was issued.
The statute of limitations may be longer in some situations. For example, the grievance regulations make special provisions for documents in an Official Performance Folder (OPF)2 that are relied upon in certain subsequent agency actions (such as a low-ranking by a selection board). Specific reference should be made to 3 FAM 4427(b) for these exceptions. Also, in calculating the applicable time limit, any period is excluded during which the grievant is deemed to have been "unaware of the grounds of the grievance and could not have discovered such grounds through reasonable diligence." The Grievance Board does not apply this caveat loosely.
The statute of limitations may also be shorter in certain instances. For grievances based on EEO issues (other than sexual orientation discrimination), the two-year rule does not apply. These cases have a much shorter statute of limitations. (See "Discriminatory Practices" above.) A special rule also applies to grievances concerning reprimands and suspensions without pay. (See "Discipline Cases" above.) Employees who are facing separation from the Foreign Service for time-in-class expiration, failure to meet the standards of their class, or other reasons, must file their grievance while they are still employees. Once they become former employees, they may no longer contest their separation from the Foreign Service.
Filing a Grievance with the Agency
If an employee concludes that a complaint cannot be resolved informally, the first step is to submit a written grievance to the designated official of his/her agency. Some employees erroneously submit their grievance to the Foreign Service Grievance Board (FSGB), not realizing that the Board only hears appeals that have not been satisfactorily resolved at the agency level. (An exception exists in disciplinary cases involving separation for cause under Section 610 of the Foreign Service Act, where the agency action is sent automatically to the FSGB for a hearing, bypassing the agency level. This is discussed above.)
A grievance cannot be filed against individuals. It is always filed against the agency. There is no required format for this submission, but the attached "Suggested Grievance Format" sheet may be of use. If an employee is utilizing AFSA assistance, this must be stated in the submission. A copy of the grievance and all subsequent filings must be sent to AFSA.
Each agency has a senior management official responsible for investigating and resolving grievances. In the State Department that official is a Deputy Assistant Secretary for Human Resources; in USAID it is the Director of the Office of Human Resources; in FAS it is the Director of Human Resources; in FCS it is the Human Resources Manager; and in BBG it is the Chief of the Labor and Employee Relations Division. Each of these officials has a grievance staff to assist in this process. In the State Department the staff's office symbol is HR/G; in USAID it is M/HR/PPIM; in FAS it is FSA/HRD/ELRB; in FCS it is OFSHR; and in BBG it is B/PL. Staffers in these offices are charged with impartially investigating grievances coming before them. Be cautioned, however, that sometimes a certain amount of "adversarialness" may occur in the agency review process.
Upon receipt of a grievance, the agency should send an acknowledgement letter giving the date on which the grievance was officially received and (in State) assigning a number to it. The agency then conducts an investigation and has 90 days in which it must issue a written decision. If the review is not completed and a decision not rendered within the 90 days, the grievant has a regulatory right (22 CFR 903.1) to appeal the case to the Foreign Service Grievance Board in the absence of an agency decision. This right lasts for 60 days, i.e. until 150 days from the date of the original filing with the agency. After that, the employee ordinarily must wait until the agency issues the written decision before appealing, although the Board may waive this restriction if good cause is shown. In any case, the employee always has the right to wait for the agency decision. Once the decision is issued, at whatever stage in the process, the employee may appeal to the Grievance Board and ordinarily has 60 days to do so.
Preparing Your Grievance
A grievance submission to the employee's agency should be concise and its allegations should be substantiated by any available evidence (e.g. statements by knowledgeable individuals, supporting documentation, etc.). It should include a description of the act or condition giving rise to the grievance, its effect, and any provisions of law, regulation, or policy believed to have been violated or misapplied. Lengthy, redundant, and emotionally charged allegations are usually detrimental to a grievant's case and should be avoided.
Except in disciplinary cases (as noted above), the grievant has the burden of establishing by a preponderance of the evidence that his/her case is meritorious. However, once a grievant meets this burden by showing that a procedural error or falsely prejudicial evaluation item may have been a substantial factor in the agency action being grieved, the burden shifts to the agency to prove that it would have taken the same action in the absence of the error or false evaluation item. This eases the grievant's task somewhat, but proving the basic merits of a case is nevertheless a major burden.
In order to support his/her allegations, a grievant may, under the Privacy Act or Freedom of Information Act, request copies of agency records that directly pertain to the grievance. According to the Code of Federal Regulations (CFR), a grievant is entitled to this information. Unfortunately, privacy and freedom of information requests generally take a great deal of time to process, usually prohibitively so. If the grievant makes the agency grievance staff aware of documents that support the grievance, the staff person is often able to obtain the documents quickly. Once a grievance has been appealed to the Grievance Board, the employee may request a copy of the grievance folder assembled by the agency grievance staff when the case was being investigated. The grievance folder may be helpful in preparing the cases before the Grievance Board. A grievant may also engage in formal "discovery" (the process by which the grievant requests relevant information from the agency, described further below) once he or she has appealed to the Grievance Board. He or she may also obtain voluntary statements (without going through the formal discovery process) from fellow employees who are knowledgeable about the facts underlying the grievance.
When filing a grievance alleging discrimination based on race, color, religion, sex, national origin, sexual orientation, age, or handicapping conditions, the employee should outline the chronology of events that he or she believes were discriminatory. If the grievant believes his or her rater discriminated against him or her, it is useful to include background information about the grievant's relationship with the rater. A detailed examination of the events, with a narrative explaining why they were discriminatory, should be included. Voluntary statements from individuals who had knowledge of the situation also would be helpful.
The grievant must specify the remedial action he/she wishes the agency to take to resolve the grievance. In theory, the grievant may request any remedy. In practice, the remedy must be to rectify the harm allegedly done to the grievant and to restore the grievant, as much as possible, to the position the grievant was in before the alleged violation occurred. The grievant may request that an evaluation report be expunged in its entirety or only portions thereof, but not that the language in a report be changed or that a new report be written. Since the expunction of an entire report would leave a gap in the employee's performance file, the grievant should request an additional period of time-in-class (TIC); or if only a portion is expunged, then the grievant may request a "reconstituted" promotion board, which is a special mechanism designed to show whether the removal of the falsely prejudicial material would have resulted in a promotion. Career Candidates may request an extension of their limited appointment. If an evaluation formed the basis of a low-ranking, the grievant should request that all documentation relating to the low-ranking be expunged.
Grievants should avoid the temptation to request items of relief that target individuals for some sort of discipline or rebuke. The grievance system does not view such requests favorably. While not prohibited by the regulations, punitive relief proposals contradict the main theory of the grievance process, i.e. its focus on remedial actions to undo harm done improperly to a grievant. The principle that grievances are aimed at an agency, not an individual, must be kept in mind. The sole issue should be: What can the agency do to remove the disadvantage suffered by the grievant? Efforts going beyond this to "teach a lesson" to a supervisor or other official who may have caused the disadvantage will almost certainly fail.
Finally, grievances are not the mechanism for trying to force a change of "the system." Designs to use one's individual complaint as a device for changing policy or the regulatory schema are not properly part of the grievance system and do not work. In fact, they usually detract from one's individual complaint.
If a grievance challenges a proposed disciplinary action, any form of involuntary separation other than separations for cause under Section 610 of the Foreign Service Act, or recovery from the grievant of an alleged overpayment, an employee may request that the agency suspend this action pending the outcome of the case. This is known as interim relief. The grievant must request such relief in writing, but once it is requested the agency must grant it in these kinds of cases. The grievant may also request interim relief at the Grievance Board level, but only in cases involving disciplinary action (other than separation-for-cause) or recovery of alleged overpayments, where it is within the Board's discretion to grant the relief. Interim relief is not available at the Grievance Board level for cases involving separations for cause. However, it is available for employees appealing separations for failure to meet the standards of their class, separations due to TIC/TIS, or employees facing separation for failing to achieve tenure. In most cases, a request for interim relief at the Board level must be made within 15 days of a negative grievance decision from the agency.
Employees who are represented by private attorneys will also want to request reimbursement of attorney fees and expenses. Reimbursement of attorney's fees is normally not available for employees who prevail at the agency level. Grievants who prevail before the Grievance Board are normally able to recover all reasonable attorney's fees if certain conditions are met. Settlements "catalyzed" by a mere appeal to the Grievance Board, without a decision by the Grievance Board, are not eligible for attorney fee reimbursement. Finally, after the specific relief is requested, the grievant should add a catch-all statement covering any forgotten relief requests, such as: "such other relief as may be deemed just and proper".
Both the agency and the grievant may propose a settlement at any point prior to receiving a Foreign Service Grievance Board decision (i.e., while the case is at either the agency or the Grievance Board level). The Grievance Board is also available to assist with the mediation or settlement of a case. A settlement is a compromise by both parties. Therefore, a grievant is unlikely to get all of the relief he or she requested via a settlement. AFSA strongly encourages settlements because, as the saying goes, "courts can be capricious." In a settlement a grievant has control of the outcome. When a third party, like the Grievance Board, is rendering a decision, the grievant is no longer in control of the process and outcome. A grievance resolved through a settlement agreement is considered fully adjudicated, and a clause in the agreement forecloses the employee from ever again raising the same issues.
Settlements are sometimes proposed when timely resolution of a meritorious grievance is crucial. For example: A career candidate (in State) may be scheduled for review before the next Commissioning and Tenure Board. He/she has grieved an evaluation, the agency has found the grievance meritorious and has agreed to expunge the report. However, the wrap-up of the agency's investigation and the drafting of an agency decision are time consuming. A settlement agreement bypasses this procedure and can be drafted, approved, and signed in a day, if necessary. Additionally, with a settlement there is usually no admission of fault on the part of the agency.
A grievant is not required to be present during settlement talks. AFSA's experience is that sometime the grievant's absence from settlement discussions facilitates successful resolution. The settlement proposals can be conveyed either by phone, fax, e-mail, or in person. If the grievant so wishes, AFSA can negotiate on his or her behalf, and may sign the agreement with proper authorization. If settlement terms offered by the agency are not acceptable to a grievant, he/she may, of course, reject the proposal. In that case, a final agency decision will be prepared. Both the offering of a settlement and the rejection of one are deemed to have no bearing on the case once the settlement negotiations fail, and neither side may be held to a position taken in the negotiations.
Grievance Board Appeals
If a grievant is not satisfied with the decision at the agency level, he/she may appeal to the Foreign Service Grievance Board within 60 days of receiving that decision. Only issues grieved at the agency level may be appealed to the Board. A three-person panel comprised of an arbitrator as Presiding Member and two Foreign Service annuitants as Members normally reviews each appeal. All Board members are appointed by a consensus of the foreign affairs agencies and AFSA. Active Foreign Service employees are assigned to the Board as Senior Advisors. They are charged with assembling the "Record of Proceedings" (the memoranda and documents submitted in the case) for the panel members' review. In AFSA's experience, the Board's decisions are generally more impartial than those made at the agency level, since Board members are not under the direct control of the agencies. The agency's grievance staff, while previously charged with reviewing a grievance impartially, becomes at this stage a party to the appeal, charged with defending the agency's position before the Board.
The Grievance Board, unlike the grievance staff at the agency level, will not conduct an investigation into the allegations, but will base its decision upon the materials submitted in the case. It is up to the grievant to ensure that all materials necessary to support his/her case are placed in the record. This is an onerous burden that requires the grievant to come forward with evidence (such as documents and relevant statements from knowledgeable individuals) in support of the grievance. This task may be aided by a process known as "Discovery" under which a grievant gathers evidence from agency employees or the files of the agency itself. A grievant may ask the agency to: (a) produce certain documents; (b) request its employees to respond in writing to the grievant's written questions ("interrogatories"); or (c) request its employees to answer orally the grievant's questions while a word-for-word transcript is taken ("depositions"). A grievant may also use less formal means to gather evidence in support of the case, such as asking individuals to voluntarily submit a statement in support of the grievance. The Grievance Board has guidance on the discovery process that is mailed to the grievant when he/she files an appeal with the Board. It outlines the rules and time constraints involved, which are rather strictly enforced by the Board.
In addition to buttressing his or her case with discovery, a grievant may research prior Grievance Board decisions that are similar to his or her own case. Key Grievance Board decisions may be available on the Board's website (www.fsgb.gov). In addition, AFSA maintains an index of decisions. If you wish to use AFSA's index of decisions, please call us to arrange a convenient time. In addition, AFSA may be able to help a grievant conduct research.
The grievant should also review the remedies originally requested at the agency level to determine whether these are still valid or should be amended. If he/she requires suspension of agency actions or continuation of such suspension pending the outcome of the Board appeal (interim relief) the employee must request this in writing. Granting this request is discretionary with the Board. Please note that in those cases where a grievant is already on interim relief from the agency level (such as in a disciplinary case or a separation for failure to meet the standards of their class) the appeal and request for continued interim relief must be made within 15 days of the agency decision. The Grievance Board has the authority to order or recommend certain remedies if the grievance is found meritorious. The employee should carefully review 3 FAM 4455 b (6), which addresses the Board's remedial authority in detail. See also section 1107 of the Foreign Service Act.
Most Grievance Board appeals are decided in a non-hearing procedure where the Board's decision is based on the parties' written submissions to the Record of Proceedings. The grievant is not present during the panel's deliberations, nor is his/her representative or a representative of the agency. A written decision is issued to the parties, including findings of facts and a statement of the reasons for the Board's decision.
The Board will conduct an oral hearing under the following circumstances: (a) at the request of the grievant in any case involving disciplinary action or an involuntary retirement from the Service for expiration of TIC or for failure to meet the standards of the class, (b) in separation for cause cases where the employee has not waived the hearing in writing, or (c) when, in very rare instances, the Board determines that a case can best be resolved through a hearing.
Grievance Board decisions are final administrative decisions subject to judicial review (see below). However, if a grievant discovers new or previously unavailable material evidence, he/she can request that the Board reconsider the case. This procedure should be used only when the evidence presented is clearly new, for the Board takes a dim view of efforts to have a case re-examined solely because the grievant disagrees with the Board's reasoning. In practice, the Grievance Board almost never changes its decision.
All grievance appeals should be addressed to the Executive Secretary of the Foreign Service Grievance Board, Suite 3100 S, SA-15, Washington, DC 20522-1531. (The street address is 1800 North Kent Street, Arlington, VA.) The grievant must enclose all documentation that was submitted at the agency level along with the agency's decision. In a cover memo, the grievant should explain why he/she disagrees with the agency's decision and provide any additional arguments that he/she considers relevant. A suggested format is attached. Supplementary evidence and documentation may be submitted at specific times while the Record of Proceedings is open. (See the attached Time Line.) Copies of all submissions to the Board must also be sent to the agency grievance staff and to AFSA.
District Court Review
Judicial review in federal District Court may be requested where a party believes that the Grievance Board erred in its findings of fact or law. Except for EEO cases, however, the purpose of judicial review is not to provide another opportunity to have the merits of a case reviewed from the start. The court's review will be limited to a determination of whether the Grievance Board made factual findings that are clearly erroneous or incorrectly interpreted law and regulations. With EEO cases (excluding those based on sexual orientation, where the review is likewise limited), the District Court will conduct a de novo (new) review of the merits. Both the grievant and the agency have the right to appeal the Grievance Board's decision if not satisfied with the decision.
The statute of limitations for taking a final Grievance Board decision to court is 180 days. For EEO cases (again excluding those based on sexual orientation, where the general rule applies), the time limit is 90 days. We suggest you consult a private attorney if you wish to appeal a final decision, because pleadings must conform to court rules. AFSA representation is unavailable for appeals to court.
IV. Grievance Communications
The grievance regulations provide in Section 4425.1-1 for safeguarded telegraphic channels to and from a grievant. Employees may consult with AFSA about grievances via the "ERG" (Exclusive Representative Grievance) channel. (Any other cable communication between a post and AFSA should be via the "AFSA" channel.) While all cables require post or agency approval for transmission, such approval is pro forma for grievances. Authorizing officers may not deny transmission. Furthermore, no copies of an ERG cable may be retained or distributed to anyone but the sender or addressee. It has been AFSA's experience, however, that with the advent of email, employees no longer avail themselves of filing through telegraphic channels.
We urge employees contemplating a grievance to maintain maximum confidentiality. In our experience, confiding in career counselors, colleagues, or supervisors about one's intent to file a grievance often results in a negative reaction. If the grievant needs corroborating statements to present his/her side of the story, he/she should be discreet and exercise sound judgment in choosing witnesses. We strongly suggest you consult with AFSA about communicating your grievance situation with others.
AFSA's Grievance Staff may be contacted at (202) 647-8160 and (202) 647-0265 (fax) for State, FCS, FAS, and BBG employees. USAID employees should contact AFSA at (202) 712-1941 or (202) 216-3710 (fax). Material can be sent to our offices at the following addresses:
2101 E Street NW
Washington, DC 20037
American Foreign Service Association
Department of State
AFSA, HST 1251
Washington, DC 20520
(For State, FCS, FAS, and BBG)
1300 Pennsylvania Ave NW
Washington, DC 20523-2900
Suggested Grievance Format
M/DGHR - Linda S. Taglialatela [Department of State]
M/HR/PPIM - [USAID]
B/PL - Sheryl Williams Jones [Broadcasting Board of Governors]
USFCS/OFSHR - Ejike Obineche [Department of Commerce]
FSA/HRD - Nayoka Irving, Attorney [Department of Agriculture]
USDA/APHIS/MRPBS - Rene Wing, Assistant Branch Chief [APHIS]
[your name and grade]
Grievance Submission for Final Agency Review
In accordance with 3 FAM 4434.1, I hereby file the following grievance. This grievance falls within the definition of a grievance provided in 3 FAM 4412.____. [INSERT APPROPRIATE NUMBER]
[Outline your grievance. Start with an explanation of who you are and give a brief background of the events that led up to the grievance. All points should be addressed clearly, concisely, and in logical order. A chronological description of events is usually best. Remember that the examiners of your grievance are not familiar with your circumstances, and so you should assume very little in explaining the facts. Indicate any provision of law, regulation, or agency policy which may have been violated. Accompanying documentation should be identified as exhibits and appended to the grievance.]
I request the following relief:
[Explain what relief you want the agency to provide in order to redress the points you are grieving. Review 3 FAM 4431b to determine if interim relief is available.]
Please note that [insert AFSA attorney name] at AFSA is assisting me with this grievance. Please copy [him/her] on all correspondence related to this grievance.
Suggested Grievance Appeal Format
Mark S. Johnsen
Foreign Service Grievance Board
SA-15 1800 N. Kent Street, Suite 3100
Arlington, VA 22209
[your name and grade]
Grievance Appeal Submission (Case # ____)
In accordance with 3 FAM 4410, I hereby file the following grievance appeal.
[Outline your appeal. All points should be addressed clearly, concisely, and in logical order. The main focus of your appeal is to refute the agency's decision and prove to the Board that your case is meritorious. You may submit other information and other arguments if you feel they further document your case. Accompanying documentation should be identified as exhibits and appended to the appeal. You MUST include copies of your original grievance submission, with any attachments, and the agency decision. You may wish to follow the following format.]
I. Summary of Grievance.
This will be no more than two brief paragraphs setting forth the essence of the complaint. It should include the request for interim relief, if applicable.
There may be only one argument or there may be several. Lead with the strongest and then develop the rest in order of perceived relative strength. As much as possible, separate your arguments into discrete sections with separate subheadings. Identify clearly any documents as Attachment A, B. C, etc. In developing your argument, include, as appropriate, citations to relevant Grievance Board, court, and other precedents.
Keep this short and concise. Show where your Argument inexorably leads.
IV. Remedies Requested.
Set out the remedies in order of relative importance, if possible: a., b. c., etc. Be succinct. You may revise your relief from the original grievance if you feel the need, provided you stay within the general boundaries of your original case. Review 3 FAM 4453 to determine if interim relief is applicable. PLEASE NOTE: If the agency granted you interim relief, in most cases you must file your appeal within fifteen days to receive uninterrupted interim relief. Always include as a final remedy "other relief deemed just and proper."
Please note that [insert AFSA attorney name] at AFSA is assisting me with this grievance appeal. Please copy [him/her] on all correspondence related to this grievance appeal.
cc: [Agency grievance staff]
Timeline For Filing a Grievance
Grievant submits grievance to Agency
There are time limits for filing a grievance. A non-EEO grievance is time-barred unless presented within two years of either (a) the date of issuance of a document being grieved or (b) the date of any other act or occurrence giving rise to the grievance. There are exceptions to the two-year rule, which are discussed in AFSA's Grievance Guidelines. (There is a special provision for grievances involving performance evaluations.) For grievances involving discrimination, the employee usually must file within 180 days of the alleged discrimination. If the discrimination is ongoing, filing must occur within 180 days of the last discriminatory act. (The limitation period for EEO cases may be extended if the grievant is overseas.) For all grievances, except those involving financial claims, an employee must file a grievance with the agency while he or she continues to be a member of the Foreign Service.
Acknowledgement letter sent by Agency to grievant
Generally this acknowledgement is issued two to three weeks after submission of the grievance, giving a case number (State cases) and other information.
Options on appealing to the Foreign Service Grievance Board (FSGB)
The Agency has 90 days to render a decision. If a timely decision declares the grievance meritorious, the grievance is resolved. If a timely decision is a denial, the grievant has the option to appeal within 60 days from receipt of the decision letter. (Note: Grievants who wish to obtain interim relief from the FSGB have a shorter period to appeal, in most cases within 15 days.)
In the event the Agency fails to provide a decision within 90 days, the grievant has the option to wait for the decision or immediately appeal to the FSGB. In this situation, the appeal must be made within 150 days from the initial grievance submission (but not before 90 days have passed). If 150 days expire without the grievant filing an appeal, the grievant may either wait for the Agency decision before filing an appeal within 60 days of its receipt or request leave from the Grievance Board to appeal without an agency-level decision. In the latter event, good cause must be shown for having let the 150 days go by without appealing.
Filing appeal to the Foreign Service Grievance Board
The grievant submits the appeal, a copy of the original grievance, and a copy of the Agency decision to the FSGB. If the grievant is on interim relief and wants it to continue without interruption, the appeal must be filed within 15 days from receipt of the Agency decision.
Foreign Service Grievance Board acknowledges receipt of the appeal
The FSGB sends out an acknowledgement letter assigning a new (FSGB) case number and giving other preliminary data.
Discovery requests and additional submissions
The grievant has 20 days from the date of the appeal submission to request discovery. Any additional requests for discovery must be made within 10 days of receipt of the response to the first discovery request. Upon completion of discovery, the grievant has 30 days to make a final submission. If no discovery is sought within the 20-day window, any final submission must be filed within 30 days from the date of the appeal.
The Agency can submit any documentation, including a response to the grievant's submission, not later than 30 days after receiving the grievant's final submission.
Grievant's rebuttal to Agency's response
The grievant can make a rebuttal to the Agency's response within 15 days of receiving the Agency's response.
Record of Proceedings closed
The FSGB notifies the parties that it stops accepting submissions and starts deliberations toward a decision on the merits of the case. The FSGB seeks to render a final decision within 90 days of closing the Record of Proceedings, but this deadline is a goal, not a requirement.
Appeal to District Court
In all cases except EEO cases, an appeal must be filed to the U.S. District Court within 180 days from the FSGB's final decision. In EEO cases, the deadline is generally 90 days from the FSGB's final decision.
1 Other foreign affairs agencies have different nomenclature. USAID, for example, uses the annual Evaluation Form (AEF).
2 In USAID this is called the Evaluation File. It has different names in FCS and FAS.