2012-066 02-06-2014 - B - Interim Decision - final

8/10/2019 2012-066 02-06-2014 - B - Interim Decision - final

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BEFORE THE FOREIGN SERVICE GRIEVANCE BOARD

In the Matter BetweenRecord of Proceedings

Grievant FSGB Case No. 2012-066

And February 6, 2014

Department of State INTERIM DECISION

_________________________________

For the Foreign Service Grievance Board:

Presiding Member: Warren R. King

Board Members: Lois E. Hartman

Frank Coulter(term expired September 30, 2013)

Special Assistant Joseph J. Pastic

Representative for the Grievant: Neera ParikhAmerican Foreign Service Association

Representative for the Department: Dorian Henderson, HR/GGrievance Analyst

Employee Exclusive Representative: American Foreign Service Association

EXCISION


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CASE SUMMARY

HELD: The Board found the Department misapplied 3 FAM 4854 when it ruled againstgrievant in his request for a suggestion certificate and cash award for a suggestion theDepartment had implemented. The Board remanded the matter to the Department for

reconsideration. OVERVIEW

(grievant), a FS-02 Security Engineering Officer with the Department of State(Department), appealed the Departments denial of his grievance in which he contested itsdecision not to grant him a suggestion certificate and cash award after it had implemented hissuggestion to issue Foreign Service specialists with appointment certificates signed by theSecretary. He first submitted the suggestion in 2004 and resubmitted it in 2005 after the initialsuggestion was rejected. The second attempt was also rejected, but grievant continued toadvocate the appointment certificate program, both on his own and with AFSA and othercolleagues. Eventually, the Department decided to adopt the program, initially with certificates

signed by the Director General and later, in 2010, with the Secretary signing the certificates.Grievant received a meritorious honor award and cash from his bureau in 2008 for his work tobring his suggestion to fruition. In 2011, after the Secretary began signing the certificates,grievant asked the Department to grant him a suggestion award, but it was not approved. Hefiled a grievance with the Department arguing that the official who disapproved his suggestionaward was, at the same time, the deciding official in a disciplinary action to be taken againstgrievant and therefore should have recused himself from making a decision on the award. TheDepartment rejected his grievance in which he sought a suggestion certificate and a cash awardas remedies. In its decision the Department relied on the presumption of regularity on the part ofpublic officials in defending the Deputy Assistant Secretarys disapproval of the award. Further,

the Department argued that grievant was ineligible for an award, citing 3 FAM 4854, whichprecludes recipients of a cash award for a suggestion from any further claim against theGovernment. The Board agreed with grievant that the Department misinterpreted the regulation(3 FAM 4854) prohibiting multiple awards. The award he received from his bureau was not forthe suggestion itself but for his work to bring the suggestion to fruition and for his long record ofwork to improve workplace issues and lift morale. The Board also found that the Departments

reliance on the presumption of regularity in regards to the Deputy Assistant Secretarysdisapproval of the suggestion award was not justified in this case. The Board remanded thematter to the Department for reconsideration of a suggestion certificate and cash award forgrievant.


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INTERIM DECISION

I. THE GRIEVANCE

(grievant), a FS-02 Security Engineering Officer with the Department of

State (agency, Department), grieved the Departments decision not to grant him a suggestion

certificate and cash award after it implemented his suggestion to issue appointment certificates to

Foreign Service specialists. The Department denied his grievance in September 2012 and

grievant appealed to this Board on November 3, 2012. Grievant requested a certificate and a

cash award for his suggestion as well as several other remedies.

II. BACKGROUND

In an effort to boost morale and to provide more equitable treatment of Foreign Service

specialists, grievant proposed that the Department should recognize specialists for achieving

career status and give them certificates, signed by the Secretary, when they were tenured. This

would parallel the commissioning certificates signed by the President and Secretary of State that

generalist officers receive upon confirmation by the Senate and attestation by the President.

Grievant officially submitted this as a suggestion in 2004 through the Departments suggestion

program,1but the responsible office did not approve it. He resubmitted the suggestion in 2005,

and again it was rejected, but grievant continued to advocate for the certificates, as did the

American Foreign Service Association (AFSA).

In February 2008, the Director General (DG) approved an action memorandum to

implement a certificate program, which began later that year with certificates signed by the DG.2

1The suggestion program is described in 3 FAM 4850 and 3 FAH-1 H-4850. Regulations concerning thecomputation of cash awards for tangible and intangible benefits are found at 3 FAH-1 H-4817 and H-4818.

2The action memorandum noted that AFSA had sent a letter in November 2005 renewing its request that theDepartment endorse its proposal to issue certificates to specialists. The memo also stated that senior management in


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In July 2008, grievants bureau (Diplomatic Security, DS) approved a meritorious honor award

and $2000 cash award for grievant for his role in establishing the certificate program and noting

his work in other efforts to lift morale.

Not satisfied that the awards were signed by the DG and not the Secretary, grievant

posted a recommendation to Secretary Clinton on the Departments Sounding Board website in

2009, asking that the certificates bear her signature, and in 2010 the Secretary agreed to sign the

certificates. In a worldwide cable in March 2010 announcing the new program, AFSA

recognized grievant, at the time a member of AFSAs Specialist Advisory Committee, noting

that he initiated this effort and worked hard with us and others to make it a reality.

In 2011, grievant contacted the Office of Performance Evaluation (HR/PE), the office

responsible for the Departments awards and suggestion programs, to note that his suggestion

had been implemented and that he had not received a suggestion award. HR/PE consulted with

the Office of Career Development and Assignments (HR/CDA). HR/CDA had rejected the

suggestion proposals in 2004 and 2005 but this time recommended that grievant receive a $500

cash award. HR/PE forwarded a decision memorandum on October 20, 2011 to the DG

recommending that grievant receive a $500 cash award for his suggestion. The same day HR

Deputy Assistant Secretary J. Robert Manzanares disapproved the recommendation. There was

no reason given for the disapproval.

On May 29, 2012, grievant filed a grievance contesting the Departments refusal to grant

him a suggestion certificate and cash award for the suggestion he had proposed and that had been

adopted. He asserted that the Department had violated the intent of the suggestion program and

had acted in bad faith by denying him the certificate and award. In the grievance, he also

the Bureaus of Diplomatic Security and Information Resource Management had been strong advocates of the

proposal and that a 2006 proposal from HR to the Secretary on the subject had been put on hold.


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claimed that it was inappropriate for Mr. Manzanares to be the deciding official on his award as

he was also the official who separately had recommended him for discipline over frivolous,

unfounded allegations. He claimed that Mr. Manzanares had held the memo without a decision

and that Mr. Manzanares should have recused himself from deciding the suggestion award, citing

5 USC 2302(b)(10)3and 5 CFR 2635.5024.

The Department denied his grievance in September 2012, finding that grievant had not

satisfied his burden of proof to establish, by a preponderance of the evidence, that the

Department violated any law or regulation, engaged in any prohibited personnel practice, or

acted arbitrarily by refusing to issue him a Suggestion Program certificate and cash award. In

particular, the Department ruled that HR had followed the rules of the suggestion program when

it rejected his proposal in 2004 and 2005, that Mr. Manzanares had disapproved the HR/CDA

memorandum in October 2011 and not held it without decision, that HR had advised grievant of

that decision, that grievant had not overcome the judicially created presumption of regularity on

the part of government officers, that Mr. Manzanares had acted properly, and that in accordance

35 USC 2302 (b) (10) reads: (b) Any employee who has authority to take, direct others to take, recommend, orapprove any personnel action, shall not, with respect to such authority (10) discriminate for or against any

employee or applicant for employment on the basis of conduct which does not adversely affect the performance ofthe employee or applicant or the performance of others.45 CFR 2635.502 concerns impartiality in performing official duties, in particular regarding business and personalrelationships. Grievant stated that under this section, an employee is required to consider whether the employee'simpartiality would reasonably be questioned if the employee were to participate in a particular matter involvingspecific parties where persons, with certain personal or business relationships with the employee are involved andrecuse himself as appropriate. Section 2635.502(a) reads:

(a) Consideration of appearances by the employee. Where an employee knows that a particular matterinvolving specific parties is likely to have a direct and predictable effect on the financial interest of a

member of his household, or knows that a person with whom he has a covered relationship is or representsa party to such matter, and where the employee determines that the circumstances would cause a reasonableperson with knowledge of the relevant facts to question his impartiality in the matter, the employee shouldnot participate in the matter unless he has informed the agency designee of the appearance problem andreceived authorization from the agency designee in accordance with paragraph (d) of this section.(1) In considering whether a relationship would cause a reasonable person to question his impartiality, anemployee may seek the assistance of his supervisor, an agency ethics official or the agency designee.(2) An employee who is concerned that circumstances other than those specifically described in this sectionwould raise a question regarding his impartiality should use the process described in this section todetermine whether he should or should not participate in a particular matter.


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with 3 FAM 48545, grievants acceptance of the meritorious honor award and cash award from

DS in 2008 precluded him from receiving another award for the suggestion.

Grievant appealed to this Board on November 3, 2012. He claimed that the Department

had violated the rules for the suggestion award program and had shown bad faith by

implementing his suggestion but withholding his award, an action he said constitutes

harassment. He reiterated his complaint that it was improper for the deciding official on the

award to also be the officer who proposed disciplinary action against him. For relief, he

requested a certificate and cash award for his suggestion and a letter of apology.

In a supplemental submission dated November 15, 2012, grievant argued that HR had

fought the certificate program from the beginning and that HR was harassing him. He claimed

the Department had deprived him of a benefit and that it was abuse of authority to deny a

Suggestion Award [proposal] repeatedly only to adopt it without issuing the Suggestion

certificate and award. He asserted that he was denied a fair and impartial review and

challenged the Departments position that he was not eligible for a separate suggestion award.

In its response on December 13, 2012, the Department argued that grievant had not

provided sufficient evidence to establish that the Department had violated any rules or

regulations in handling his suggestion. The Department disagreed with his assertion that an

impending decision on a disciplinary matter prevented him from contacting Mr. Manzanares.

The Department concluded that grievants acceptance of a meritorious honor award nullified his

claim for additional compensation and prevented the Department from issuing a second award.

In a January 16, 2013 rebuttal, grievant argued that the Department had provided

irrefragable proof that law and regulations were violated. He asserted that there was no

53 FAM 4854 (Award Nullifies Future Claims) reads The acceptance of a cash award for a suggestionconstitutes an agreement that its use by the U.S. Government shall not form the basis of a further claim of any natureagainst the Government by the employee, his or her heirs, or assigns.


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duplication between his honor award and the proposed suggestion award and that HR/PE

determined that he met the criteria for an award. He further claimed that Mr. Manzanares did not

base his decision to deny him a suggestion certificate and cash award on the issue of a previously

awarded honor award, thus the Departments argument concerning that fact was irrelevant.

The Record of Proceedings was closed March 5, 2013.

III. POSITIONS OF THE PARTIES

THE GRIEVANT

Grievant argues that [a]fter all the hard work and after allthe discouragement presented

to me by my superiors and HR, and since the Department has adopted my Suggestion Program

proposal, since HR/PE nominated me for a Suggestion Award, HR should grant it. He claimed

that HR had fought the creation of the Specialist certificates from the start and HR only

implemented the program when it was directed from above to do so. HR was directed to create

the program because all the Specialist leadership repeatedly complained to the DG over a

period of four years until finally, the DG agreed to implement the program. He stated his belief

that HR sabotaged the program by convincing then-Secretary Rice to delegate signature

authority to the Director General, which grievant contended upset specialist employees because

the Secretary is the legal appointing official. He believed also that HR has been harassing me

through use of administrative actions in order to punish me for working behind the scenes to get

the certificate program approved when HR was against this. He asserted that HRs refusal to

give him a suggestion award was further evidence of HRs harassment. Grievant maintained that

a remedy granting him a suggestion certificate and a reasonable cash award would"send a

message to all HR that HR (finally) supports this program.


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Grievant complained as unfair that Mr. Manzanares both reviewed the 2011 award

decision memorandum and served as the deciding official on discipline for him. He contended

that Mr. Manzanares violated the federal statute on prohibited personal practices, specifically 5

USC 2302(b)(10), by withholding my suggestion because any outstanding allegations are

frivolous and have no bearing on my suggestion proposal. Citing 5 CFR 2635.502, grievant

asserted that Mr. Manzanares should have recused himself from the decision on the suggestion

award, as a reasonable person would not place themselves in a decision making matter

regarding a proposed cash award and a certificate for a subordinate in which they have sought

discipline. Grievant noted the Departments argument that he needed to provide irrefragable

proof to overcome the presumption of regularity but asserted that the Department had provided

that proof itself by confirming that Mr. Manzanares had turned down the recommendation to

provide grievant with a certificate and cash award after the Department had adopted the

proposal. He claimed it was an obvious conflict of interest to be both the deciding official on a

suggestion certificate and cash award while also being the deciding official on the proposal for

discipline especially when issuance of the award undermines Manzanares attempt to take

punitive action against me. In a related argument, he claimed that he could not therefore follow

up with Mr. Manzanares regarding the status of his award nomination after he was told to check

with the Director Generals office about the issue.

Grievant challenged the Departments position that having received a meritorious honor

award and cash from DS, he was not eligible for a separate suggestion award. In essence, he

claimed that the honor award and a suggestion award are different: the suggestion award would

be for a suggestion, while honor awards are for outstanding performance or special acts of

service. He noted that the honor award he received was given to him for his work related to the


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certificate program (and the courage I exhibited in standing up to HR harassment) after the

program had been suggested. He averred that his suggestion had met the criteria for a suggestion

award, given the ideas impact once implemented. He also noted that DAS Manzanares provided

no reason for rejecting the action memorandum and argued that according to the suggestion

award procedures, a suggestion award is to be granted if a suggestion is adopted.

Grievant claimed that during the several years he spent seeking approval of his

suggestion, many superiors discouraged [him] from pursuing this proposal not because the

proposal was without merit but simply because they did not want to make waves in the

system. He called this harassment, as the proposal was adopted by AFSA making it a union

activity so my superiors were, in effect, attempted [sic] illegally to direct me to stop participating

in a union activity. He noted that once the proposal was accepted and the Department had sent

out worldwide cables announcing the program and thanking him, his superiors changed their

attitude toward him.

Grievant argued that his suggestion had produced both tangible and intangible results.

Calculating that in 50 years more than 30,000 certificates will have been issued, he termed his

suggestions impact as priceless, noting that he was due a cash award and certificate

because the Department will continue to benefit from [his] suggestion forever. Regarding the

tangible benefits, he argued:

Under 3 FAH-1 H-4817.1, the Department is obligated to issue a certificate andcash award based on the tangible benefits of the suggestion. I assert that 4500+printed and signed certificates are tangible. I assert that improvement to moraleand to performance is tangible. I assert being able to see a certificate signed bythe Secretary over your own desk is tangible. I assert that the improvedperformance of all Specialists due to their certificates is tangible.

Grievant noted that there was also a regulatory basis for awards based on intangible

results: And FAH-1 H-4817.2 A cash award may also be made when an employee


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contribution does not lend itself to appraisal on the basis of tangiblebenefits. So, awards can

also be issued for intangible benefits.

Grievant asserted in his supplemental submission that HR was mistaken in stating that the

benefits of a suggestion must be tangible for a suggestion award to be granted, noting other

criteria:

Further, HR/G states a suggestion must be tangible in order to grant a

suggestion award but the word tangible does not appear anywhere in the FAM

as a criteria for suggestions awards. And the criteria that are listed clearly applyto this circumstance. 3 FAM 4852 states A suggestion must directly contributeto the economy, effectiveness, or efficiency of Government operations in order tobe considered for an award. ...and ideas that improve the quality, effectiveness, or

timeliness of a Government function or improve service to the public. Thecitation of my meritorious honor award acknowledges that the issuance of anappointment certificate to FS Specialists improves morale and corrects a

discrepancy. The implementation of the FS Specialist certificate program clearlyimproves the effectiveness and efficiency of Government operations andimproves the quality, effectiveness and timeliness of the Government. Therefore,a suggestion award is due for proposing this program.

Grievant used the opportunity of his last submission to make several accusations

concerning harassment he had received for his activity on the appointment certificate program.

He claimed that in 2011 supervisory personnel in DS told him to cease and desist from working

on the FS Specialist appointment certificate and to just do [his job]. He asserted that he was

entitled to carry out this effort as it was a union initiative and that he was able to participate in

such activities in accordance with 5 USC 7102 and the Foreign Service Act, Section 1004.

Grievant added to his requested remedies of a certificate and a cash award that managers

be held accountable and directed not to inhibit union activities, that the Board direct HR and DS

to allow him and others toparticipate in AFSA activities, to direct HR to stop wasting

significant resources over matters frivolous to HR, and to direct HR to abide by conflict of

interest statutes.


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THE DEPARTMENT

The Departments position is essentially that grievant failedto establish that the

Department is obligated to issue him a second suggestion certificate and cash award. Grievant

already accepted a meritorious honor award and cash award for his suggestion; regulations

preclude another award. Notwithstanding an impending disciplinary action, grievant could have

contacted Mr. Manzanares, as HR/PE suggested to him, to discuss the memorandum from

HR/PE recommending an award. Mr. Manzanares, as the DAS overseeing HR/PE, was the

proper person to make a decision on the award proposal. The Department did not address

grievants allegations of interference or harassment regarding his individual or AFSA-related

work on the certificate program.

Grievant provided no specific evidence to overcome the presumption of regularity and

integrity on the part of HR officials or otherwise suggest that Mr. Manzanares or anyone else in

HR acted contrary to the presumptions under which they are expected to perform their official

duties and responsibilities. As a result, grievant did notpresent sufficient evidence to overturn

the decision by Mr. Manzanares to turn down the recommendation for a cash award for approval

of grievants suggestion proposal in 2008. The Department discovered in the course of its

grievance investigation that grievant had received a meritorious honor award and $2000 cash

award from DS. The receipt of this award was noted in grievants Employee Evaluation Report

for 2008-2009. The Department disagreed with grievants assertion that the meritorious honor

award from DS does not preclude receipt of a suggestion award, which in his view are two

different awards for different efforts. The Department countered by citing 3 FAM 4854 and

noting, Grievants acceptance of the Individual MHA therefore nullified his claim for any


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additional compensation. There is no basis on which grievant can be issued a Suggestion

Program certificate and cash award, as requested, for the exact same suggestion.

The Department confirmed that it was grievants proposal that was approvedin 2008,

noting, Despite what grievant believed to be HR/PEs denial in 2005, the Department finally

approved grievants Suggestion Program proposal and issued ALDAC telegrams announcing the

certificate program and personally thanking grievant.6

IV. DISCUSSION AND FINDINGS

In all grievances, other than those involving discipline, the grievant has the burden of

establishing, by a preponderance of the evidence, that the grievance is meritorious.

7

There is no disagreement that what grievant had first proposed formally in 2004 has been

adopted by the Department. The Departments denial of the grievance is based on two

arguments. One, that grievant received a Meritorious Honor Award with $2000 in cash for his

suggestion and the regulations prohibit his receiving additional compensation for it. And two,

that the judicial presumption of regularity applies to DAS Manzanaress decision to deny

grievant the suggestion award and grievant has provided no evidence to the contrary. The

grievance also raised several related issues discussed below, including the need or not for

tangible results and interference or harassment for working on AFSA activities.

Impartiality of Mr. Manzanares: Grievant asserted that DAS Manzanares (deciding

official, decision maker) should have recused himself from ruling upon the cash award, citing

5 CFR 2635.502 which is included within the Standards of Ethical Conduct for Employees of the

Executive Branch (Ethical Standards). We conclude that this particular citation is not

6Contrary to the Departments assertion concerning the ALDAC messages, the record shows that it was a messagefrom AFSA, sent through Department channels, which thanked grievantby name. The Departments message didnot mention him by name. Also, the Department attributed the decision by the Secretary to sign the specialistcertificates to Secretary Rice, but it was Secretary Clinton who was in office when that decision was made.722 CFR 905.1(a).


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applicable to this case, as it deals with personal and business relationships and conflicts of

interest arising or potentially arising from personal, business, or financial interests. While the

deciding official was involved in both decisions affecting grievant, he had no known financial,

business, or covered personal interest that would invoke 5 CFR 2635.502. That regulation is

intended to protect employees (and the Government) from the reality or appearance of a personal

interest in the outcome of a decision. Grievant provided no evidence that the deciding official

had such a personal/business/financial interest in the decisions regarding grievant.

We have examined this recusal issue, however, in the context of other ethical provisions

set forth in the Ethical Standards which clearly apply to the circumstances presented here.

Specifically we refer to the provisions in 5 CFR. 2635.101(b) (8) and (14). Paragraph 8 provides

thatEmployees shall act impartially and Paragraph 14 provides thatEmployees shall

endeavor to avoid any actions creating the appearance that they are violating . . . [these] ethical

standards . . . . Whether particular circumstances create an appearance that . . . these standards

have been violated shall be determined from the perspective of a reasonable person with

knowledge of the relevant facts. Finally, 5 CFR 2635.101(a) provides that each employee

shall respect and adhere to the principles of ethical conduct set forth in this section.

Thus an employee who does not act impartially or whose acts create the appearance of

not acting impartially violates these standards. While on this record we cannot say that the

deciding official was not impartial in denying the award, we are satisfied that a reasonable

person with knowledge of the relevant facts would fairly conclude that the particular

circumstances create an appearance that . . . these standards have been violated . . . . See

Paragraph (14),supra.In short, weighing the relevant, undisputed facts presented here leads to a

firm conclusion that a reasonable person aware of those facts would conclude that the decision


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an action that required the decision-maker to weigh the facts presented and then make an

informed decision which called for an exercise of discretion and judgment. Therefore it is not

entitled to any presumption of regularitybeyond that embedded in the Boards normal allocation

of burden of proof.

Before we address the grievants proof and weigh the effects of the circumstances

presented here, we will review the context in which the decision challenged by grievant took

place. The $500 cash award for grievant had been recommended by two offices in HR (PE and

CDA) in a memorandum dated October 20, 2011 from Lawrence C. Mandel, director of the

Office of Performance Evaluation (HR/PE), to Director General Nancy Powell (who also holds

the title of Assistant Secretary for Human Resources). Her deputy, DAS Manzanares,

disapproved the award, however, without any explanation or comment other than his initials and

a handwritten note on the memorandum just below his initials on the disapproval line: Larry,

call me (Larry, we presume, is Mr. Mandel, the author of the memorandum recommending the

award).

At the same time that the award matter was pending, a disciplinary action involving

was being considered by the Department. See Grievance Appeal (FSGB-2012-040,

Interim Decision dated May 22, 2013). In that case it was alleged that displayed

excessive personal interest in a female consular officer at an overseas post in late 2008 and early

2009, that he was ordered by the DCM to stop contacting the consular officer, that he

nonetheless did make further contact with her, that as a result he was offered the choice of a

voluntary or involuntary curtailment, and that he voluntarily curtailed in March 2009.

In his next post it was contended that made unwanted personal contacts with a

provided by agency stating that certain taxes were paid); Legille v. Dann, 544 F.2d 1, 7 n. 39 (D.C. Cir.1976)(handling and delivery of mail).


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female contractor that he supervised. After the contractor complained in September 2010 an

investigation was conducted during which the circumstances of the matter at the earlier posting

were also considered. This resulted in notification from the Department that, based on a total of

23 specifications from both the 2008/2009 posting and the 2011 posting, it intended to suspend

for ten days.10The grievance reviewed in FSGB Case 2012-040, referred to above11,

was filed in response to the Departments proposed sanction.

In reviewing the record related to the Boards Interim Decision in that case, we learned

that DAS Manzanares was the deciding official regarding the disciplinary action and that

Grievant personally appeared before DAS Manzanares on October 19, 2011 to make an oral

presentation to rebut/reduce the proposed ten-day suspension.

The next day, October 20, 2011, HR/PE forwarded the suggestion award

recommendation memorandum addressed to the DG, Nancy Powell. Although there is no date

on the memorandum indicating when the award was disapproved, the Department, in its response

to grievants supplemental submission in this grievance appeal, stated DAS Manzanares

disapproved the cash award on October 20, 201112the day after grievants oral presentation to

DAS Manzanares regarding the disciplinary action.

Based on the above we can conclude that the following facts are undisputed:

1. Pursuant to the October 20, 2011 recommendation memorandum from HE/PE

Lawrence Mandel to DGHR Nancy Powell, the suggestion submitted by

was approved by the Director General on February 11, 2008, but at that time a

10 The Department ultimately reduced the number of specifications to nine (five in the first post and four at thesecond post) and reduced the suspension to two days.11 In its Interim Decision the Board concluded that the five specifications from the first posting were not timely;however, it sustained the four specifications associated with the second posting, but remanded for reconsiderationwith respect to one of those specifications. On remand the Department imposed a one day suspension and thatdetermination was affirmed by the Board in a decision issued on October 10, 2013.12 Department response at 5.


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monetary award was not determined;

2. Two separate offices in HR (PE and CDA) recommended that a cash award in the

amount of $500 be made13;

3. DAS Manzanares disapproved the award without any explanation; however, there

was a handwritten entry made which was initialed by JRM to the effect of Larry

call me;

4. At the same time there was pending a disciplinary action against which was

based on a number of allegations of unwanted contacts by directed to several

females who were subordinates of

5. DAS Manzanares was the deciding official in that grievance;

6.

On October 19, 2011 met with DAS Manzanares to make an oral presentation

regarding the circumstances in the grievance;

7. DAS Manzanares disapproved the recommendation for a cash award on Oct 20, 2013,

the day after met with him to discuss the circumstances in the disciplinary

matterthus the numerous allegations in the nature of sexual harassment of

subordinate female employees set forth in the disciplinary case would certainly have

been fresh in his mind when he rejected the recommendation for a cash award.

We are satisfied, based on the foregoing undisputed sequence of events involving actions

taken, the questionable timing of those actions, and the complete failure to provide any

explanation, then ornow, in support of those actions14, that the deciding officials impartiality

13 While, to our knowledge there is no empirical evidence available regarding the frequency of approval of cashawards when recommended by two different offices, it is our impression in those circumstances that awards aregenerally granted. Because that impression lacks certainty, however, we do not consider it to be an undisputed fact

here.14 After the award was denied, grievant inquired of staff regarding the reason for the denial. He was told he shouldspeak with DAS Manzanares about that. Grievant states that he did not do so because he believed that contacting


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might reasonably be questioned and therefore he should have recused himself from deciding the

monetary award issue that had submitted.15In short, we are satisfied that a reasonable

person with knowledge of [these] relevant facts could fairly doubt that any deciding official in

these circumstances would be able to maintain an open mind with respect to the award decision

and for that reason the impartiality of the deciding official can be reasonably questioned. We

find that given the totality of the circumstances and the proof presented that grievant has carried

his burden to demonstrate actionable bias in this case.

Notwithstanding our determination regarding the propriety of the official involved to

make the award decision, we want to be clear that we are not holding that the same official can

never decide two (or more) matters near in time to each other relating to a particular employee.

Indeed, we think in most instances that would be an entirely appropriate course of action. We

find here, however, that there are sufficient circumstances to persuade us that any reasonable

person would have expected the decision maker to recuse on the award determination.

Nonetheless, we emphasize that our finding on the recusal issue is in no way an indication of our

view with respect to the appropriate outcome of the award decision. That is a determination to be

made by an impartial official in the agency who has been presented with the relevant facts. In

sum, we are simply saying, because of the factors we have identified, that fairness requires that

the decision be made anewby an official whose impartiality cannot reasonably be questioned.

Grievants Ineligibility and Regulation on Suggestion Awards:

The Department included in its grievance decision and response the FAM section dealing

with suggestion appeals. It is noteworthy that this section (3 FAM 4855) states, there is no

appeal, as such, from the decision not to adopt a suggestion. The issue before us, however, is

DAS. Manzanares while he was considering the disciplinary matter would not be appropriate. We are sympathetic togrievants concerns on this point and reject the Departmentssuggestion to the contrary. See Response at 6.15 5 CFR. 2635.101(a) and (b) (8) and (14),


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not an appeal of a suggestion, but rather consideration for an award for a suggestion that had

been adopted.

The fact that grievant had received an honor award and cash award from DS was

apparently not known in HR until the grievance investigation in 2012, when HR/G discovered

the record of the award. So, clearly, this was not an unstated reason for Mr. Manzanaress denial

of the suggestion award. However, in its denial of the grievance and in its response to grievants

supplemental submission to the Board, the Department focused attention on the fact of this

earlier award and on 3 FAM 4854, whereby acceptance of an award for a suggestion nullifies

any future claim against the Government and which reads in full, The acceptance of a cash

award for a suggestion constitutes an agreement that its use by the U.S. Government shall not

form the basis of a further claim of any nature against the Government by the employee, his or

her heirs, or assigns. In contending that grievant thereby is ineligible and the Department is

precluded from granting a suggestion award to grievant, the Department argues that it has

provided a reason for denying grievant the award.

The Board does not agree. The award grievant received from DS was not for his

suggestion; it was for actionshe had taken in support of the suggestion, along with other acts and

performance. Thus, there was no earlier award for his suggestion and no basis for using 3 FAM

4854 to deny him a suggestion award.

It is important to understand that the criteria for a meritorious honor award and for

suggestion awards are different. Meritorious honor awards are awarded for special acts or

service or sustained performance.16 Suggestion awards are for making suggestions. Nothing

163 FAM 4828.1 describes the Meritorious Honor Award as follows,a. The Meritorious Honor Award is presented to groups or individuals in recognition of a special act orservice or sustained outstanding performance. The following criteria are applicable to granting aMeritorious Honor Award:


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more is required of the employee than making the suggestion and forwarding it through

appropriate channels.17 As grievant pointed out, the honor award and cash award from DS were

not for making the suggestion but for the action taken to make the suggestion a reality in

practice, as well as for other work to improve work conditions and morale. Secondly, the

regulation is written to include heirs, or assigns, presumably so as to ward off any future action

to recover a percentage of benefits from a suggestion with substantial ongoing benefits. The

restriction appears intended to prevent an employee receiving an award for a suggestion from

later claiming that a larger amount should be paid, presumably because the initial award

undervalued the benefit to the Department or Government. Despite grievants hyperbole

concerning the impact of his suggestion, that is not the case here with a meritorious honor and

cash award for performance that are related to the suggestion but not in place of a suggestion

award. The honor award was granted by grievants employing bureau (DS) and was not made

under the auspices of the suggestion program, which the HR Bureau manages. Finally, there was

nothing in the honor award that would imply an action was being taken which would constitute

an agreement with the Government regarding the value of the suggestion.

The Board notes that considerable time passed between the time when grievant formally

suggested the certificate program and when the Department adopted the program. In the interim,

his suggestion was twice rejected, or so grievant was led to believe. Based on the Departments

statement in its response (Despite what grievant believed to be HR/PEs denial in 2005, the

(1) Outstanding service in support of a one-time event (e.g., support for a major conference or summitmeeting);(2) Innovation and creativity in accomplishing short-term tasks or projects;(3) Outstanding performance in one or more areas of the employees official duties as defined in the Work

Requirements Statement (Foreign Service) or Performance Plan (Civil Service); and/or(4) Contributions that resulted in increased productivity and efficiency, and economy of operations at postor bureau level.

17As noted earlier, 3 FAM 4850 and 3 FAH-1 H-4850 describe the suggestion awards program. 3 FAH-1 H-4817and 4818 concern cash payments for suggestion and other awards.


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Department finally approved grievants Suggestion Program proposal), it appears that it may

not have been rejected the second time. Nevertheless, 3 FAH-1 H-4853 describes a two-year

period during which suggestions are retained and during which time may be reopened for award

consideration if the idea is adopted or proof of present or definite future use is established. The

Board concluded in this case, however, a two-year period would be arbitrary and irrelevant, as

grievant continued his quest, pressing for adoption of his idea and eventually achieving success

with its formal adoption.

For the foregoing reasons, the Board finds that the Department, in its decision,

misinterpreted and misapplied the 3 FAM 4854 restriction and that in the absence of any other

ineligibility, grievant remains eligible for a suggestion certificate and cash award.

Tangible Benefits:

Grievant claims variously that his implemented suggestion resulted in tangible or

non-tangible benefits. Because the Department did not argue otherwise before the Board

and in light of our disposition of this case, we need not address this issue.

Interference with AFSA-related activities:

Grievant claims that various bureau and agency officials have criticized his work on

AFSA-related union activities, and he cites the Foreign Service Act18(FSA) and 5 USC 710219

as the statues and regulations authorizing his work. Grievant is correct that he is entitled to join

18Grievant cites the FSA (PL 96-465) Section 1004 (a) as the authority for his action. That section reads:(a) Every employee has the right to form, join, or assist any labororganization, or to refrain from any such activity,

freely and without fear of penalty or reprisal. Each employee shall be protected in the exercise of such right.195 USC 7102 reads:Each employee shall have the right to form, join, or assist any labor organization, or to refrain from anysuch activity, freely and without fear of penalty or reprisal, and each employee shall be protected in theexercise of such right. Except as otherwise provided under this chapter, such right includes the right(1) to act for a labor organization in the capacity of a representative and the right, in that capacity, topresent the views of the labor organization to heads of agencies and other officials of the executive branchof the Government, the Congress, or other appropriate authorities, and(2) to engage in collective bargaining with respect to conditions of employment through representativeschosen by employees under this chapter.


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and assist an employee organization, but that does not extend to unlimited use of official time on

behalf of the organization or on activities outside of normal duties. We do not know the extent

to which any of this involved official time, and despite grievants assertions of harassment, we

do not have enough evidence before us to judge whether what his supervisors were alleged to

have done in telling him to focus on his regular work and not on AFSA and other activities

constitutes a violation of regulation or not. Therefore, the Board will not rule on this issue.

The attachment provided by grievant in his final submission to the Board contained no

evidence of intervention by HR with the Secretary on this issue. Unlike grievant, the Board

sees nothing sinister in the manner in which the matter was handled. No such evidence was

provided showing anything being done to intervene with then Secretary Rice to prevent her from

signing the certificates. It appears from the evidence provided that it was simply a decision on

her part and that the Director General chose to sign the certificates so that they could be issued.

Grievant opined in his final submission that significant resources have been expended

during the course of this grievance. He argued that HRs refusal to settle what is important to

him but frivolous to HR has clearly wasted resources. He suggested that HR should be directed

to stop wasting large amounts of resources defending against matters that are frivolous for them

to challenge and settle small requests to the benefit of the FTE employee. It is not the Boards

role to recommend to the Department whether to settle, contest, or accede to a grievance, and we

will not decide on grievants request, whether we were to consider it frivolous or important.

Grievant asked the Board to direct the Department to issue him an apology for their

inappropriate actions which have harmed [him] by withholding the certificate, cash award and by

perpetuating a false perception of wrongdoing amongst my peers. We deny this request as it is

beyond the Boards remedial authority.


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V. INTERIM DECISION

The Board finds the presumption of regularity regarding DAS Manzanaress disapproval

of the cash award does not apply in this case and that the Department misinterpreted the

regulations and that the meritorious honor award and cash award grievant received from the DS

bureau do not preclude his eligibility for a suggestion certificate and cash award. The Board

remands the case to the Department for reconsideration of the decision regarding the suggestion

certificate and cash award. The Department shall report the results of its reconsideration to the

Board and grievant within 30 days of the date of this Interim Decision, and grievant shall provide

the Board with his rejoinder, if any, within 10 days of the Departments notice of

reconsideration.

For the Foreign Service Grievance Board:

Warren R. KingPresiding Member

Lois E. HartmanMember

Frank J.CoulterFormer Memberterm expired September 30, 2013

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2012-066 02-06-2014 - B - Interim Decision - final

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