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BEFORE THE FOREIGN SERVICE GRIEVANCE BOARD

In the Matter Between


Record of Proceedings
Grievant

FSGB Case No. 2013-028

and

September 24, 2014

Department of State

DECISION
EXCISED

_________________________________

For the Foreign Service Grievance Board:

Presiding Member:

Susan R. Winfield

Board Members:

James E. Blanford
Barbara C. Cummings

Special Assistant

Lisa K. Bucher

Representative for the Grievant:

Pro se

Representative for the Department:

Thomas M. Lipovski
Attorney Advisor,
HR/G

Employee Exclusive Representative:

American Foreign Service Association

OVERVIEW
HELD: The Department committed a procedural error by placing in grievants Official
Personnel File (OPF) a prejudicial Inspectors Evaluation Report (IER) that included
inadmissible comments about another identified employee, in violation of agency regulations,
and without first counseling grievant on certain performance issues mentioned in the IER, or
giving her an opportunity to improve her performance. The IER was ordered expunged from
grievants OPF in its entirety.

SUMMARY
Grievant, a former Ambassador to
, appealed the Departments denial of her
2013 grievance, claiming that an IER prepared in November 2011 focused primarily on the
performance of her DCM and contained several inaccurate statements. Grievant claimed that
inclusion of the IER in her OPF was prejudicial because she had not received counseling on the
areas of her performance that were criticized in the report. After soliciting feedback from post
personnel, the Department expunged portions of two statements in the IER, but otherwise found
the remainder to be an accurate reflection of grievants performance, as corroborated by
numerous statements from identified Mission employees.
The Board determined that grievant was not counseled on matters that were negatively discussed
in the IER, nor was she given an opportunity to improve performance problems raised in the
report. The Board concluded that regardless of the purpose for the IER, grievant was entitled to
be counseled and provided a reasonable opportunity to improve before she could properly be
critiqued on performance deficiencies in an IER. The Board held further that grievant met her
burden of proving that she was unaware of the shortcomings mentioned in the IER; she had no
reason to become aware of these deficiencies; and, therefore, that counseling could not be
excused as harmless error. The Board further found that the IER contained a significant number
of inadmissible comments about the performance of the DCM, an identified other employee, and
was, therefore, written in violation of applicable regulations that govern the preparation of
evaluation reports. The Board concluded that the IER is invalid and ordered it removed from
grievants OPF.

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DECISION
I. THE GRIEVANCE
On May 1, 2012, Ambassador

(grievant) filed a grievance claiming that

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

, contained inaccurate and falsely prejudicial comments about

her work performance; improperly focused on the performance of the Deputy Chief of Mission
(DCM), rather than her own performance; and was the result of bias on the part of the Inspection
Team Leader. On April 23, 2013, the Department issued its decision, expunging portions of two
statements that grievant identified as inaccurate or falsely prejudicial, but denied grievants
request to expunge the report in its entirety. On June 24, 2013, grievant appealed the agencylevel decision to the Foreign Service Grievance Board (FSGB, Board), requesting that the Board
order the IER to be removed from her official performance file (OPF); that if her file has been, or
is reviewed for promotion with the offending IER included, that her OPF be forwarded to a
reconstituted Selection Board without the IER; and that if grievant has been, or is low-ranked by
a Selection Board that reviewed her file with the IER in the OPF, that the low-ranking be
expunged from her file.
Grievant filed a supplemental submission on October 4, 2013. After discovery was
completed, the Agency submitted a response to the grievance appeal on April 10, 2014 and
grievant submitted a rebuttal on May 21, 2014. The Record of Proceedings (ROP) was closed on
June 18, 2014.
II. BACKGROUND
Grievant, a Foreign Service Officer with the U.S. Department of State since 1985, was
appointed the U.S. Ambassador to

in September 2010 where she served until August


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2013. In November 2011, the Office of the Inspector General (OIG) conducted a routine
inspection of Embassy

As part of the inspection process and a routine evaluation of post

managers, the inspectors sent out survey questionnaires about grievants performance; reviewed
survey responses completed by Mission employees; spent two weeks at post observing
operations; and conducted a series of in-person interviews regarding the management of post
operations. At the conclusion of the inspection, the OIG team issued an IER of the
Ambassadors performance, covering the period from September 13, 2010 through November
12, 2011.1
The IER recognized several reasons why the Embassy environment was difficult for the
staff: it was a critical threat post with a 20 percent hardship and a 25 percent danger pay
differential; there was restricted mobility outside of the cramped Embassy compound; and the
Mission was located in an unstable, violence-prone country. The report commended the
Ambassador as an acknowledged regional expert, a skillful strategist and a seasoned player
in the Washington interagency process. In the opinion of the inspectors, the Ambassador
deserved recognition for her achievements in promoting U.S. objectives in a difficult country at
a particularly difficult time.
The IER, however, indicated that there were problems with the tone set by the front
offices communications with the rest of the Mission, particularly communications by the new
Deputy Chief of Mission (DCM) and the Ambassadors Office Management Specialist (OMS).
The inspection team found that the DCM, who had been at post four months, micromanaged
Embassy staff to the detriment of morale and productivity. The IER stated that the Ambassador

At the time of this inspection, 3 FAM 2813.5-1 provided for regular inspections of Missions by OIG inspectors.
Although this regulation has not been revised, grievant argues that the OIG has ceased issuing IERs as part of the
post inspection process. See, fn 12, below.

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was not fully aware of the extent of the problems and had not effectively addressed the moraledamaging situation.
The Ambassador filed a grievance, claiming that the IER contained inaccurate and falsely
prejudicial statements and was the result of a negative bias on the part of the inspectors,
particularly the OIG team leader. Grievant took issue with the following critical statements
contained in the IER:
1. . . . the failure of the Ambassador to ensure that the tone of the front
offices communications with the rest of the embassy was always
professional and respectful has damaged her in the opinion of the
community.
2. . . . by not curbing her new DCMs propensity for micromanaging, she
contributed to a decline in morale at a hardship post that cannot afford
more stress.
3. Although the Ambassador was aware from long acquaintanceship that
the DCMs unvarnished and often demeaning style could give offense, she
believed erroneously that the DCM was making progress in modulating
her tone, and did not take adequate steps to evaluate the DCMs
performance and enforce professional standards.
4. The Ambassador also did not fully realize that the DCMs aggressive
interference in routine business was having a damaging effect on post
morale as employees concluded that the front office did not trust them to
do their jobs.
5. The DCMs activities during the four months of her tenure in
have caused a rift between the front office and the rest of the mission that
the Ambassador is now struggling to bridge.
The Department granted limited relief, modifying portions of two sentences in the IER:
[re: sentence 3, above] The agency expunged the initial portion of the original sentence that
read:
Although the Ambassador was aware from long acquaintanceship that the
DCMs unvarnished and often demeaning style could give offense,

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as well as the last few words of the sentence and enforce professional standards, leaving the
sentence to read:
The Ambassador believed erroneously that the DCM was making
progress in modulating her tone, and did not take adequate steps to
evaluate the DCMs performance[.]
[re: sentence 5, above] The Department expunged the last portion of this sentence, that the
Ambassador is now struggling to bridge, leaving the remainder to read:
The DCMs activities during the four months of her tenure in
have
contributed to a rift that has developed between the front office and the
rest of the mission[.]
The Department reaffirmed the remainder of the IER, citing numerous corroborating statements
from Mission employees, either in their individual survey questionnaires or in interviews
conducted during the inspectors visit. According to the agency, these employee statements
supported the criticisms of grievants work performance that are contained in the IER.
Grievant appealed the Departments decision to the FSGB requesting that the IER be
expunged in its entirety because it contains inaccurate and falsely prejudicial comments and was
the result of bias on the part of the OIG team, especially the team leader. In a supplemental
filing, grievant added a complaint that the IER focuses on the behavior of the DCM, rather than
her own performance, and that because she had never been counseled on the criticisms contained
in the IER, it should be expunged.
III. POSITIONS OF THE PARTIES
A. GRIEVANT
Grievant maintains that the OIG team did not give adequate weight to several
demoralizing events that occurred at post shortly before their arrival. In the months immediately
preceding the inspection, personnel issues at post had led to two separate investigations and
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extraordinary visits to post by representatives of the Departments Office of Civil Rights (OCR)
and the Departments Diplomatic Security Office of Professional Responsibility (DS/PR). The
two separate personnel matters resulted in a senior officer and another officer being involuntarily
curtailed from post for inappropriate behavior. Another officer requested and obtained a
compassionate curtailment that was granted. Both that officer and his wife, who also worked in
the Mission, departed post abruptly. According to grievant, these multiple curtailments caused
tumult among Embassy employees who, due to privacy and security concerns, could not be
apprised of, or reassured about, the events that led to all of the curtailments. Grievant claims that
the OIG team discounted the impact on morale caused by the investigations, sudden departures,
and widespread employee speculation about these events, choosing instead to focus mainly on
the behavior of the DCM as the cause of low morale.
Grievant also asserts that even before arriving at post, the OIG team was biased by their
reading of employee questionnaire survey responses.2 She contends that only 21 individuals (of
a total of 79) responded to the OIG pre-inspection survey and of those, five were favorable to
her. Grievant also maintains that the inspection team began the inspection with an adversarial
approach that was evident from the antagonistic nature of their questions and the team leaders
reluctance to meet with grievant regularly, as is normal practice during inspections. When
grievant did finally meet with the OIG team leader, she claims that the focus of the conversation
was the DCM and her performance. She reports that the team leader expressly stated that the
OIG report recommendations were designed to force the DCMs curtailment, which ultimately
occurred.

Grievant also points to the team leaders prejudice against grievants Office Management Specialist, because the
team leader had worked with the OMS at a previous post.

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Grievant maintains that the criticisms of her in the IER were, in part, punitive and in
retaliation for not agreeing with the harsh criticisms of the DCM and for initially resisting the
DCMs immediate curtailment. Grievant also complains that during the two weeks the OIG
team spent at post, team members refused to leave the compound at all, despite invitations to do
so, which unfairly narrowed their perspective of the Mission and may have further biased their
assessment of post morale.
In response to the Departments assertion that there is a legal presumption of regularity
that holds that in the absence of irrefragable evidence to the contrary, government officials are
presumed to perform their duties correctly, fairly and in good faith, grievant questions why this
presumption was not also applied to her and the manner in which she performed her official
duties.
Grievant points out that because most of the criticisms in the IER are focused on the
DCM, rather than on her performance, the agency violated the regulations that govern the
employee evaluation process and it is therefore improper to include the IER in her personnel file.
She contends that the sentences lambasting the DCMs performance . . . should not be contained
in my evaluation. Grievant then offers specific arguments and supporting statements from post
employees as to why each of the negative statements in the IER is inaccurate and falsely
prejudicial.3
She lastly asserts that the IER is fundamentally unfair because she was never counseled
on the issues raised in the report. To support her argument, grievant quotes Board precedent that
counseling and the subsequent opportunity to address deficiencies is not just a procedural right,
but also a substantive right. FSGB 2002-054 (June 17, 2003) at p. 18; FSGB 2008-012 (April

Because of the disposition of this appeal, we do not recite or address in any detail the parties arguments for and
against each of the contested statements in the IER.

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17, 2009). Recognizing that the last cited case referred to a corrective IER, grievant maintains
that the Board should apply the right to counseling broadly to all IERs, regardless of whether
they are deemed corrective or standard.
Grievant contends that there is no basis on which to conclude that she should have been
aware of the shortcomings mentioned in the IER, which might obviate the need for counseling.
She asserts that her supervisors, specifically the Deputy Assistant Secretary (DAS) of her
regional bureau

Office Director4 responsible

)) and the

for her post, had an opportunity to counsel her when they visited the Embassy and met with
many of the staff in October 2011, one month before the inspection team arrived. She states that
neither of these supervisors counseled her on her management, leadership, or interpersonal skills,
or on any of the specific issues raised by the OIG inspectors in the IER. According to grievant,
her performance feedback was consistently positive. She states that her most recent Employee
Evaluation Report (EER) prior to the inspection commended her for strong leadership and
management skills. In addition, she states that when the OCR conducted an investigation into
post morale (also in October 2011) and briefed the

Executive Director on its findings,

neither the OCR representative nor the Executive Director counseled her on her work
performance, including any failure to discover alleged difficulties between Embassy staff and the
DCM or her OMS. On another occasion, grievant states, the

DAS acknowledged that the

bureau did not inform either the DCM or grievant until March 2012 of complaints that had been
lodged in the fall of 2011 by entry level officers about the lack of an effective mentoring
program at post.
Grievant concludes that it is unfair for the Department to hold her to one standard for
counseling -- i.e., that she was obligated to discover performance problems in her subordinates
4

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and counsel them appropriately while not holding her bureau supervisors to the same standard
of giving her notice of perceived shortcomings and counseling her. At post, grievant claims it
was the responsibility of the management officer (MO) to alert her to issues regarding the
performance of the DCM, but the MO never informed her that there was a problem.
Finally, grievant argues that the performance deficiencies noted in the IER have
significantly damaged her reputation, eligibility for promotion and competitiveness for future
assignments. She contends that since the OIG has decided to stop issuing IERs as part of the
post inspection process, and since the IER at issue here is one of the last to be produced, it is
especially unfair to include it in her OPF because she will be disadvantaged when she competes
for assignments and promotions if her file is compared with those of other candidates at her
grade who do not have IERs in their records.
B. THE AGENCY
The Department asserts that it conducted an extensive investigation into the challenged
statements in the IER and maintains that each statement is fully supported by credible statements
from identified post employees; therefore, the criticisms may be appropriately included in the
report. The agency argues that grievants claims are without merit and she has not provided
sufficient proof that the IER statements regarding her performance are inaccurate. The agency
also asserts that grievant has not shown that the statements in the IER that address the DCMs
performance were inaccurate or were improperly included in the report.
The Department also contends that grievant does not establish that the OIG team leader
or the inspectors were biased and has not met her burden of proving that the team leader failed to
perform her duties correctly, fairly, and in good faith, and in accordance with the law and

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governing regulations.5 The Department quotes the team leader that: [she] had no preconceived opinion of the front office before arriving [at post] for the inspection. The agency
also states that the team leader had no previous association with either the grievant or the DCM
and had not formed an opinion of either before conducting the inspection. The OIG team
members stated that they were surprised by the degree of employee unhappiness they
encountered at post. The Department also contends that grievant's impression that the team
leader was avoiding a direct meeting with her and that the team adopted an adversarial approach
to the inspection are both unsupported by the facts. As such, the agency concludes, grievant has
not presented evidence that would establish bias on the part of the OIG team or its leader.
The Department also argues that grievant has not proved that any of the challenged
statements in the IER are inaccurate or falsely prejudicial. Moreover, even if grievant has
presented sufficient evidence to call into question the accuracy of the challenged IER criticisms,
the Department claims that it has produced ample corroboration from named sources to
demonstrate a substantial substantive basis for each of the comments. The agency then
responds to each of grievants arguments about each challenged statement in the IER and cites
numerous comments from post employees that it claims corroborate each statement.
On the issue of counseling, the Department maintains that grievant was not entitled to
counseling because she received a standard IER rather than a "corrective" one, designed to
amend a previous EER. The agency argues that in the same case relied upon by grievant, FSGB
Case No. 2008-012, supra, the Board specifically distinguished a standard IER from a corrective
IER. The Board held that since a corrective IER is meant to amend a prior EER, it should have
the same requirements for counseling and an opportunity to improve as that of the EER. The
same was not determined to apply to standard IERs.
5

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

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The Department argues that a standard IER does not compare to an EER or a corrective
IER and, therefore, does not require provision of the same procedural rights for an employee as
in the regular EER process, and by extension, the corrective IER process. The agency also cites
FSGB Case No. 2010-031 (April 4, 2011) that defines a standard IER as an evaluation tool . . .
intended to focus on the rated officers skills and abilities to manage . . . personnel that is used
to rate the employees suitability for advancement to greater responsibilities. The agency
argues that because the standard IER at issue here was not intended to correct or amend a prior
EER, there was no necessity to counsel grievant about deficiencies raised in the IER.
The Department further argues that the circumstances of this case do not support
grievants right to counseling because her superiors were not aware of the performance issues
raised in the IER. The agency cites FSGB Case No. 2008-012, supra, for the principle that a
grievant does not have a right to be counseled about performance deficiencies, where it can be
shown that senior management at the embassy . . . neither knew nor should have known through
reasonable diligence of the deficiency. That . . . would present a different case.6 The
Department maintains that grievant was not entitled to be counseled because she has not
provided evidence that her supervisors knew or should have known about the criticisms of her
performance that are mentioned in the IER. Grievant has not shown that her superiors personally
observed any of the problems at post, or were informed by any of the individuals at the Embassy
about management and morale issues at post.
Finally, the agency contends that grievant should have been aware of the concerns raised
by the OIG inspectors; and, therefore, the lack of counseling was, at most, harmless error. The
Department quotes from FSGB Case No. 2010-031, supra, in which the Board stated:

Ibid. at page 43.

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Had grievant known (or should [ ] have known) of the deficiencies [in an
IER], the Board suggested that it would have considered the failure to
counsel argument to be harmless error.
The Department then references numerous statements by individuals at the Embassy to
show that grievant knew or should have known of the problems raised in the IER. These
employees indicated their beliefs and assumptions that grievant was aware of the interpersonal
problems of her OMS and the DCM and the effect they were having on post morale. Several
employees commented on the physical closeness of grievants office to her OMS and the DCMs
office and the way sound carried in the relatively close space as reasons why they surmised that
grievant must have been aware of abusive communications between the OMS and the DCM with
others in the Mission. None of the individuals who were quoted by the Department reported that
grievant took any action to correct the behaviors detailed in the IER. The agency concludes that
at a minimum, grievant should have known of her performance deficiencies that were mentioned
in the IER and, therefore, the failure to counsel her on these issues should be considered
harmless error.
IV. DISCUSSION AND FINDINGS
In all grievances, except those involving discipline, the grievant bears the burden of
showing by a preponderance of the evidence that the grievance is meritorious. 22 CFR
905.1(a). The burden of proof in this case requires grievant to establish by preponderant
evidence that the IER contains falsely prejudicial or inaccurate material.
In the instant case, grievant argues that the 2011 IER prepared for her performance as
COM in

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

improperly focuses more on the performance of the DCM than her own; the report was allegedly
the product of a biased inspection team; and inclusion of the report in her OPF violates her due
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process rights because she was not counseled on the performance deficiencies that were reported
in the IER and she was not given a reasonable opportunity to improve before the criticisms were
included in an evaluative document.
In FSGB Case No. 2008-012, supra, this Board held that where a grievant presents
significant and tangible evidence that contradicts statements in an IER, due process requires that
the agency present independent substantive evidence from sources waiving confidentiality to
support the challenged statements; failing which, the uncorroborated statements must be
expunged. Id. at pp. 20-21; see also, Section 105(b)(4) of the Foreign Service Act, 22 U.S.C.
3905, which states that a goal of the Act is to strengthen and improve the Foreign Service by
maintaining a fair and effective system for the resolution of individual
grievances that will ensure the fullest measure of due process for the
members of the Foreign Service.
In the instant case, grievant presents a few statements by post employees that contradict
some of the comments in the IER. In response, the Department offers statements from known
sources that it claims corroborate each of the statements in the IER. We do not discuss each of
the contested statements in detail here because we hold that the IER would have to be redacted to
exclude inadmissible comments identifying another official; however, it must be expunged in its
entirety because the agency failed to counsel grievant on the deficiencies noted in the report.
(See discussions below.)
On the issue of bias, we are not persuaded that grievant presents sufficient evidence that
the OIG team was biased. Although grievant may have interpreted the manner in which the team
conducted the inspection as indicative of bias, she presents no evidence that any of the inspectors
actually had any predisposition against her, the post, or any other employee at the Embassy. The
most grievant offers is: a statement that the team leader and grievants OMS served together

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previously at another post; a claim that the team leader resisted meeting with her until the
inspection was nearly completed; and the fact that the team declined offers to leave the
compound to accompany grievant to meetings. These facts are not sufficient to establish that
bias colored the facts or conclusions in the IER in any way. We conclude that grievant has failed
to provide preponderant evidence that the IER reflected bias on the part of the OIG inspection
team, including the team leader.
Grievant also asserts that several of the allegedly corroborative statements from
members of the embassy community were the product of long-standing and sometimes unrelated
animus on the part of the individuals queried. We conclude, however, that grievants evidence
of animus is no more than her assessment of possible motives behind the statements, not their
accuracy. Moreover, for every claim of individual animus, the Department offers a number of
statements from a cross-section of the Mission community that corroborates the accuracy of each
challenged statement.
What remains are grievants claims that the IER improperly focused on the performance
of the DCM and a claim that she had a right to counseling prior to inclusion of negative
statements in her IER. As to her complaint about the focus of the IER, grievant points out that
although the report was meant to address her management and leadership skills, it is largely
directed at the DCMs behavior and contains several comments that did not pertain at all to her
performance. We find that what was at issue in the inspection was grievants alleged lack of
awareness of, and inattentiveness to, the negative effect on post morale that was purportedly
caused by the behavior of her subordinates. Because the concern was how well or poorly
grievant was performing as Chief of Mission, we find that the IER should have focused on

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grievants performance vis--vis her detection and management of post problems caused by a
subordinate.
At the same time, the regulations are clear: it is inadmissible to include in an IER
negative or pejorative comments about the performance of another identifiable member of the
Service. 3 FAM 2815.1 (b) (15). An example of this form of inadmissible comment is provided
in the regulation: Rater cannot state[:] The member quickly brought order out of chaos left by
the members predecessor. In the IER in the instant case, there are numerous pejorative
statements about the DCM, who is identified much more specifically than in the example
provided in the regulation (the members predecessor). She is identified by her current
position title, her post and the date of the assignment. Since there is at any point in time, only
one DCM at a given post, the identification of the DCM in this case could not have been clearer
without her name being revealed. Moreover, the pejorative comments about the DCM are harsh,
including:
o . . . new DCMs propensity for micromanaging;
o [T]he front office, most particularly the DCM, had frequently been dismissive,
intemperate, and unprofessional in both oral and written communication to mission
personnel;
o The Ambassador believed erroneously that the DCM was making progress in
modulating her tone;
o . . . the DCMs aggressive interference in routine business was having a damaging
effect on post morale as employees concluded that the front office did not trust them
to do their jobs;
o The DCMs activities during the four months of her tenure in
rift between the front office and the rest of the mission; and

have caused a

o [T]he Ambassador worked with the DCM on a plan to ensure correct professional
communications and to reset frayed relationships with embassy staff.

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In FSGB Case No. 2000-079 (October 5, 2001), the Board held that an IER that violated
regulations (inclusion of confidential information) was inherently invalid and ordered it
expunged. Id. at p. 35. In this instance, we conclude that the IER violates Department
regulations because what is intended to be an evaluation of grievants performance repeatedly
identifies the DCM and criticizes her in numerous inadmissible comments. For this reason, but
for the conclusions that follow regarding the failure to counsel grievant, we would order that the
IER be redacted to replace every reference to the DCM with the phrase a senior official.
With regard to the counseling issue, this Board recognizes that in certain circumstances,
an employee must be counseled and given an opportunity to improve before he or she can be
officially criticized for that performance. FSGB Case No. 2002-054, supra, at p. 18; FSGB Case
No. 2008-006, at 12 (December 31, 2008) (a grievant [is] entitled to counseling and an
opportunity to improve before having his career derailed by . . . perceived deficiencies); FSGB
Case No. 2008-012, supra, (Counseling with an opportunity to improve is the bedrock of the
performance evaluation system in the Foreign Service). As part of the routine employee
evaluation process, counseling is required at least twice during a normal rating period and is
intended to ensure that the rated employee is apprised of how well he/she is meeting his/her
established work requirements. See, 3 FAH-1 H-2242. Instructions for completion of an EER
state that [c]riticisms included in the final EER should not come as a surprise to the rated
employee.7
The Board has held that in some instances, a recipient of an IER may be entitled to the
same counseling rights and opportunity to improve that apply to EER recipients. FSGB Case
No. 2008-012, supra. (There is no functional difference between a corrective IER and an EER
when it comes to the requirement that the employee receive adequate counseling and an
7

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

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opportunity to improve his/her performance.) Although the cited case specifically addressed a
counseling requirement necessitated by a corrective IER, the Board did not preclude this right
from extending to a standard IER.
IERs generally are the product of OIG periodic inspections of posts abroad. 1 FAM
055.6 defines and describes the IER process, providing in part:
a. Inspection team leaders, normally of ambassadorial rank, may prepare, in
connection with each post abroad or domestic inspection, an inspectors
evaluation report (IER) on all career and noncareer chiefs of mission
(COMs), permanent chargs, deputy chiefs of mission (DCMs), principal
officers (POs), Assistant Secretaries, and deputy assistant secretaries who
have been in their position more than 120 days (see 3 FAM 2813.5).8
b. If an IER is prepared, it will be directly related to the officers management
or supervision of the unit or post being inspected and will make up a part
of the independent review of the operation being evaluated.
c. IERs may evaluate the officer in any area of his or her responsibility, but
will focus on their skills and abilities in managing personnel, budgets,
resources, and programs. IER procedures allow for formal comment by
the rated officer as part of the evaluation report.
*

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


panel of three active or retired ambassadors who have been senior
inspectors to review the IER. Once approved, the panel sends the IER to
the Inspector General. In the case of a career employee, the Inspector
General sends it with a memorandum to the Director General of the
Foreign Service, requesting that it be placed in the rated officers official
performance evaluation file.9
8

3 FAM 2813.5-1 states:


Inspectors will prepare Inspectors Evaluation Reports (IERs) on senior officers (chiefs of
mission, permanent chargs, deputy chiefs of mission, principal officers, Assistant
Secretaries and deputy assistant secretaries) in connection with each post or bureau
inspection. These IERs will be related directly to the officers management or
supervision of the domestic unit or post abroad being inspected and will constitute a part
of the independent review of the operation being evaluated. They will focus on the skills
and abilities of rated officers to manage personnel, budgets, resources, and programs.
Both career and noncareer officers will be evaluated.

(Emphasis in original).
9

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

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These regulatory provisions makes clear that an IER, in addition to being a routine inspection of
post operations, is intended to be an evaluative report of Mission managers, including the
Ambassador, that may ultimately be included, along with other evaluative reports, in their OPFs.
Any IER, whether issued to correct a previous EER or issued as a result of a routine post
inspection, includes an evaluation of the performance of post supervisory personnel. It follows,
then, that the same procedural fairness that is required for issuance of an EER should also attend
the issuance of any IER. We think the rule of fundamental fairness applies equally when the
performance of an Ambassador is evaluated in an IER, as when an untenured officer receives his
first EER. We conclude that [c]riticisms included in the final [evaluation report] should not
come as a surprise to [any] rated employee. Accordingly, because we see no difference
between the impact of performance criticisms in an EER and an IER on an employees career
opportunities, we conclude that any employee whose work performance is evaluated in an IER,
as in an EER, has a right to be notified and counseled about any perceived deficiencies and given
a reasonable opportunity to improve before those deficiencies may be included in either
evaluative document.
The parties do not contest that grievant received no counseling about any of the criticisms
about her performance that were stated in the IER at issue. Grievant presented evidence that
shortly before the OIG began its inspection at post in November 2011, the DAS from the
regional bureau (

and the

Office Director visited and met with Mission

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

a.

The original and one copy of the final IER will be forwarded by the Inspector
General to the Director General for inclusion in the rated officers Official Personnel
Folder. The Director General retains the authority and responsibility for
determining admissibility of an IER to an officers personnel folder.

(Emphasis added.) The parties seem to agree that the Director General has determined that the IER in this case
should be, and has been, included in grievants OPF.

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the OIG team, but grievant reports that neither of them counseled her on any of the matters later
identified as performance weaknesses by the OIG team. If grievants superiors were made aware
of any shortcomings in her work performance, then they should have, but did not, counsel her
about them. If they were unaware of any performance deficiencies, then the Department must
concede that grievants superiors could not, and did not, counsel her. In the absence of
counseling, grievant did not have the opportunity to try to improve.
The Department argues that grievant was not entitled to be counseled on matters about
which her supervisors were not aware. We do not agree. The fundamental fairness of a
performance evaluation hinges on the provision of notice to the rated employee of his or her
deficiencies, coupled with a reasonable period in which the employee can make efforts to
improve. If a supervisor is unaware of the deficiencies, it is true that he or she cannot counsel
the employee, but, it follows, then, that, unless the employee was independently aware of
performance deficiencies, he or she ought not be negatively evaluated on those deficiencies of
which neither the employee nor the supervisor were aware.
The Department also asserts that even in the absence of counseling, the criticisms
contained in grievants IER should not have come as a surprise to her because she should have
known of the morale problems existing at post. In support of this assertion, the Department
provides numerous statements from Mission employees expressing their beliefs that grievant was
aware of the problems raised in the IER, but failed to manage them.10 Grievant responds that not

10

These statements include the following comments:


o

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

[I]t is my firm belief that Ambassador


was fully aware of [the DCMs] aggressive style and
chose to ignore it. On many occasions . . . [the DCM] related the Ambassadors wishes. . . . Therefore I
cannot believe that the Ambassador wasnt fully aware of [the] DCMs actions.

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only did her supervisors not tell her of the employees complaints, but the employees themselves
did not inform her. She speculates that [i]n hindsight, I recognize that the DCM may have been
shielding and insulating me from staff dissatisfaction. She also cites a number of employees
who stated that they did not think she was aware of how the DCM was behaving or how it was
undermining morale.11 The Department does not respond with information that employees
brought their concerns directly to the Ambassador.
Upon review of these statements, we are persuaded that grievant was surprised by the
negative statements in the IER. While she admits that she was aware of morale issues at post,
she attributed those issues to several impactful events that had occurred just prior to the
inspection and that were far different from those that were identified by the OIG inspection team.
Grievant admits that she was aware of certain interpersonal weaknesses in her OMS and the
DCM, but she strongly disagreed with the OIG focus on her subordinates as the primary cause of

I do believe Ambassador
was aware that DCM
activities were exacerbating the rift
between the front office and the rest of the mission, but I believe it was a type of willful unawareness,
perhaps delusional. . . . If [the Ambassador] was not aware or not willing to admit that this rift existed, she
was deluding herself. . . . [In All Hands meetings] . . . to the Ambassador, this kumbaya session was clear
evidence that she had her finger on the pulse of the mission. It was a charade, but no one could tell the
emperor that he had no clothes.
11
Grievant submitted the following statements from post employees:
o

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

I dont know if she recognized the seriousness of the problems or not. . . . I dont know if the Ambassador
was aware of them or not.

I believe that Ambassador


did not fully recognize the seriousness of problems at Embassy
If she had recognized the seriousness of the problems, I believe that she would have addressed
them in the beginning and not let things get so out of hand.

Even the OIG inspection team leader wrote:


showed little awareness of the significant impact on morale cause by front office
management practices and actions. She was not aware of the extent of negative sentiment
concerning front office communications, nor the depth of employee resentment of the intrusive
and imperious management style of the DCM. Although
scheduled and conducted
numerous regular meetings with employees, staff members told inspectors they volunteered little
real feedback to the front office, fearing the reaction and the subsequent damage to their careers.

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low-morale. Most telling is that when the IER team counseled grievant on the issues they
uncovered, everyone agrees that she took immediate and effective steps to manage and quell the
problems. We believe that had grievant received counseling earlier, she would have taken the
same steps sooner, with the same positive outcome. We conclude, then, that the IER process was
flawed because grievant was unaware of the performance shortcomings that were identified in
the process and because she received no advance counseling on any concerns about her
management or leadership skills prior to issuance of the IER.12
V. DECISION
The Board orders that the November 12, 2011 IER be expunged in its entirety from
grievants OPF. If grievants file has been, or is, reviewed by a promotion panel before the IER
is removed, and grievant is not recommended for promotion, a reconstituted promotion board is
ordered. If grievant has been low-ranked as a result of the inclusion of this IER in her OPF, the
Department is directed to rescind the low-ranking.

For the Foreign Service Grievance Board:

__

__
Susan R. Winfield
Presiding Member

12

Because of our findings, we take no position on grievants argument that she is prejudiced by inclusion of the
IER in her OPF based on the reported discontinuance of the practice of issuing IERs for Principal Officers as part of
a routine post inspection. It is unclear what impact the discontinued practice will have on those post managers who
have IERs in their performance folders when compared for performance purposes with those who do not.

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James E. Blanford
Member

Barbara C. Cummings
Member

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