BERYL A. HOWELL Chief Judge.
The plaintiff, Daniel Aragon, served as an entry-level Foreign Service Officer with the U.S. Department of State for five years, until he was denied tenure and involuntarily separated in 2014. The reason for the tenure denial arose during the plaintiff's second overseas assignment, when the plaintiff was responsible for supervising an employee, whose undisputed pattern of insubordination, tardiness, abuse of leave policies and performance issues would, in many work environments, warrant termination of employment. Instead, the plaintiff's management efforts, which were ultimately successful, to bring this employee into compliance with basic workplace rules, has led to the plaintiff's own termination from a job he "love[s]." AR at 354.
The plaintiff filed the instant action against the Secretary of State, in the Secretary's official capacity, after the State Department denied his grievance contesting the performance evaluations on which
This suit arises out of the plaintiff's denial of tenure by the State Department. The regulatory scheme governing Foreign Service tenure decisions is described below, followed by a summary of the particular facts underlying the plaintiff's case.
Entry-level Foreign Service career candidates are assigned upon hire to one of a variety of skill codes, referred to as "cones." Career candidates are subject to a five-year limited appointment that requires achievement of tenure within that period or mandatory separation from the Service. See 3 Foreign Affairs Manual ("FAM") §§ 2241.3(1), 2245.1. The decision whether to grant or deny tenure lies with the Commissioning and Tenure Board ("CTB"). Id. § 2245.1. "The sole criterion for a positive tenuring decision [is] the candidate's demonstrated potential, assuming normal growth and career development, to serve effectively as a Foreign Service Officer over a normal career span, extending to and including class FS-01." Id. The CTB "makes its initial judgment regarding an entry-level officer candidate's potential as soon as possible after a candidate has served 36 months." Id. § 2245.2. Candidates not recommended for tenure receive a second review 12 months after the initial review. Id. The CTB "may recommend a third review six months subsequent to the second review, if it considers that additional evaluated experience may lead to a favorable tenuring decision." Id. (emphasis omitted).
In issuing tenure decisions, the CTB relies on a candidate's performance appraisals, referred to as Employee Evaluation Reports ("EERs"), id. § 2243.1, which are completed by a rating officer and a reviewing officer at specified intervals. See id. § 2243.2. The rater and reviewer provide feedback in the EER and check one of four boxes concerning a tenure candidate's performance: (1) "[u]nable to assess potential from observations to date;" (2)
The plaintiff was reviewed for tenure by the CTB three times — once following his tour in Rio de Janeiro, and twice while serving in Dubai.
The plaintiff joined the Foreign Service as an entry-level career candidate on March 1, 2009. Id. at 8. Although he was placed in the Public Diplomacy cone, the plaintiff's first assignment, from July 21, 2009, through July 25, 2011, was in another skill area, to serve as a Consular Officer at the U.S. Consulate General in Rio de Janeiro, Brazil. Id. While there, the plaintiff received three EERs. The first two EERs, issued in July 2010 and February 2011, "praised [the plaintiff] for being `hard-working.'" Id. at 310. At the same time, however, the 2010 EER expressed concern that the plaintiff "`had some difficulty ... responding professionally and courteously while adjudicating visas.'" Id. Along the same line, the 2011 EER explained that he "`should strengthen his ability to better communicate with colleagues.'" Id. In both EERs, the rater and reviewer checked the box indicating that "[c]andidate is likely to serve effectively but judgment is contingent on additional evaluated experience." Id. The plaintiff's third EER from his time in Rio de Janeiro, issued in June 2011, recommended that he be granted tenure. Id. at 402.
The CTB first considered the plaintiff for tenure in the summer of 2012 and, based on the issues identified in his 2010 and 2011 EERs, deferred making a tenure decision to a later date. See id. at 20-21 ("The Board ... concluded that it could not yet make a definitive assessment of Daniel P. Aragon's potential to perform effectively over a normal career span, up to an including Class FS-01.... The Board hopes that in the next rating period, Daniel P. Aragon will demonstrate effective Interpersonal and Communications skills."). The EERs addressing the plaintiff's performance in Rio de Janeiro are not challenged in this lawsuit.
Following his tour in Brazil, the plaintiff completed a 45-week intensive Arabic language course and then began work as a Public Affairs Officer ("PAO") at the U.S. Consulate General in Dubai, United Arab Emirates. Id. at 8 n.1. In that position, the plaintiff "manage[d] all aspects of public relations, social media outreach, and cultural programming in Dubai and five Northern Emirates." Id. at 47. The plaintiff reported to both the Consul General, Robert Waller, and the Country Public Affairs Officer at the U.S. Embassy in Abu Dhabi, a role filled by Robert Arbuckle and then by Alica Lejlic. Id.
As PAO, the plaintiff supervised two Locally Engaged Staff, a Cultural Program Specialist ("CPS"), and an Educational Advisor. Id. The plaintiff's relationship with the CPS is at the center of this dispute. As a general matter, the record appears undisputed that the CPS would often come to work "late or not at all, without letting [the plaintiff] know," AR at 321, and had other performance issues, see e.g., AR at 405. The issue appears to have come to a head within about two months of the plaintiff's arrival in Dubai, id. at 402, when, in October 2012, the CPS took extended, unapproved, leave to Jordan, id. at 289. During her absence, "[t]he post was unable to find a guest list
In May 2013, Mssrs. Waller and Arbuckle prepared an EER for the plaintiff's file. See id. at 35. The May 2013 EER concluded, again, that the plaintiff "[wa]s likely to serve effectively but judgment [wa]s contingent on additional evaluated experience." Id. The EER listed "Managerial Skills" as the only Area for Improvement ("AFI"), citing in particular the plaintiff's counseling session with the CPS, which session ended with the CPS threatening to resign. Id. at 36. Mr. Waller noted, however, that in response to the incident, "Daniel took several FSI Distance Learning courses on management, modified his management style, and ... improved his working relationship with the employee." Id. (commending the plaintiff on his "progress" and expressing confidence that the plaintiff would "hone his skills so as to prevent difficult conversations from escalating in the future").
In light of the May 2013 EER, the CTB deferred a tenure decision for the second time, concluding that "it could not yet make a definitive assessment of Mr. Aragon's potential to perform effectively over a normal career span, up to an including Class FS-01." Id. at 23. The Board explained that although the plaintiff "ha[d] developed skills ... that are important to a successful Foreign Service Officer career, for example, a strong work ethic and a positive attitude," some issues persisted, "specifically in Managerial and Interpersonal skills." Id. The CTB's decision noted the plaintiff's need to "prevent difficult conversations from escalating when dealing with locally employed staff." Id. The Board exercised its discretion to grant the plaintiff a third and final opportunity to obtain tenure and encouraged him to focus on "developing those skills needed to `prevent difficult conversations from escalating when dealing with locally employed staff.'" Id.
In November 2013, Mssrs. Waller and Lejlic prepared another EER for the plaintiff's personnel file. See id. at 39-44. While acknowledging the plaintiff's "positive contributions" to the consulate, Mr. Waller ultimately concluded that the plaintiff was "unlikely to serve successfully up to the FS-01 level" and thus "reluctan[tly]" declined to recommend the plaintiff for tenure. Id. at 41. The EER listed the plaintiff's managerial skills and interpersonal skills as two areas for improvement, citing his "difficulty supervising an employee in his section" as well as the plaintiff's need to be counseled about ways to ensure that representational events at the consulate run smoothly. Id. at 43. In light of this EER, the CTB denied the plaintiff tenure in the winter of 2013, thereby triggering his involuntary separation from the Foreign Service, effective May 4, 2014. Id. at 262.
The plaintiff filed a grievance with the State Department's Human Resources/Grievance Department ("HR/G") on April 22, 2014, which he supplemented on May 23, 2014. See id. at 6-18. The plaintiff was granted interim relief, meaning
While continuing to serve in the Foreign Service due to interim relief, the plaintiff pursued his grievance with the HR/G. The plaintiff's grievance asserted several claims. First, he alleged that Mr. Waller had created a "relentlessly hostile" work environment and that the "Tenure Board's decision to deny ... tenure [was] based on falsely prejudicial EERs ... received in 2013."
Before the FSGB, the plaintiff renewed his hostile work environment claim, arguing that he faced unusual challenges that "reasonably affected his performance and experience in Dubai," including (1) "reporting directly to two officers who did not often agree;" (2) "receiving half the full time language training normally necessary;" (3) "supervising staff that the rater conceded were challenging;" and (4) "serving in a position that is likely better suited for a more experienced officer." Id. at 285. The plaintiff also asserted that Mr. Waller's comments in the EERs had been retaliatory and that "[Mr.] Waller's bias and prejudice against [the plaintiff] led to inaccurate and falsely prejudicial comments in [his] May and November 2013 EERs." Id. at 288 (arguing that the May 2013 EER omitted some of the plaintiff's accomplishments and that the November 2013 EER was "consumed by faint praise").
After denying the plaintiff's request for continued interim relief on the ground that he was unlikely to prevail on the merits, see id. at 259-73, the FSGB ultimately upheld the State Department's denial of the plaintiff's grievance. In its decision, the FSGB concluded that the plaintiff "ha[d] not met the burden of proving that his working environment was hostile, that his rater was biased or prejudiced, that statements in his ratings were falsely prejudicial, that he was not provided adequate counseling and time to improve his performance, or that the rater's recommendation against tenure was in retribution for comments [the plaintiff] made to Office of Inspector General ... inspectors." Id. at 400.
With respect to its holding that the May and November 2013 EERs were not falsely prejudicial — the holding most prominently at issue in this case — the FSGB explained that it had "looked with special care at the rater's observations on how grievant handled the recurring difficulties in his relationship with his staff in Dubai," citing, in particular, "the CPS, since that was the basis for the weaknesses his rater found in grievant's managerial and interpersonal skills and the major reason for the Summer 2013 CTB's deferral of a decision on granting him tenure." Id. at 418. Despite the expressed heavy reliance on the EERs' description of the plaintiff's management of the CPS, the FSGB noted that "[t]he circumstances surrounding this aspect of grievant's performance are very complicated, and the record does not include third-party observations of key interchanges — particularly the first meeting at which grievant inquired about the missing guest lists." Id.
Regarding the plaintiff's argument that Mr. Waller had failed to indicate "how difficult the [CPS] was to deal with," the FSGB concluded:
Id. at 418-19. Finally, the FSGB observed that although the plaintiff was faced with the "challeng[ing]" task of supervising locally employed staff early on in his career, "[m]any officers may eventually supervise large numbers of [locally employed staff]" and "[e]valuation of the skills required in effective supervision — i.e., the manner in which officers carry out their supervisory role — is an important consideration in evaluating their overall potential." Id. at 419. According to the FSGB, the plaintiff "ha[d] not shown that these challenges were unreasonable for an untenured officer on his second overseas assignment." Id. The plaintiff now appeals the FSGB's decision as arbitrary and capricious, in violation of the Administrative Procedure Act.
Pursuant to the Foreign Service Act of 1980 ("FSA"), "any aggrieved party may obtain judicial review of a final action of the [Foreign Service Grievance] Board in the district courts of the United States." 22 U.S.C. § 4140. The FSA provides that the Administrative Procedure Act ("APA"), 5 U.S.C. § 706, "shall apply without limitation or exception" to a district court's review of a decision by the FSGB. 22 U.S.C. § 4140(a). Under the APA, a reviewing court may set aside a challenged agency action "only if it is `arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.'" Zevallos v. Obama, 793 F.3d 106, 112 (D.C. Cir. 2015) (quoting 5 U.S.C. § 706(2)(A)) (other internal quotations and citation omitted). The scope of review under the "arbitrary and capricious standard is `highly deferential,'" id.; Am. Trucking Ass'ns, Inc. v. Fed. Motor Carrier Safety Admin., 724 F.3d 243, 245 (D.C. Cir. 2013) (same), and "narrow," such that a court is not to substitute its judgment for that of the agency," Judulang v. Holder, 565 U.S. 42, 132 S.Ct. 476, 483, 181 L.Ed.2d 449 (2011); see also Fogo de Chao (Holdings) Inc. v. U.S. Dep't of Homeland Sec., 769 F.3d 1127, 1135 (D.C. Cir. 2014) (same); Agape Church, Inc. v. FCC, 738 F.3d 397, 408 (D.C. Cir. 2013) (same). Yet, "courts retain a role, and an important one, in ensuring that agencies have engaged in reasoned decisionmaking," Judulang, 132 S.Ct. at 483-84, which is the "touchstone of arbitrary and capricious review," Pharm. Research & Mfrs. of Am. v. FTC, 790 F.3d 198, 209 (D.C. Cir. 2015) (internal quotations and citation omitted). Simply put, "the agency must explain why it decided to act as it did." Butte County v. Hogen, 613 F.3d 190, 194 (D.C. Cir. 2010).
In APA cases involving cross-motions for summary judgment, "the district judge sits as an appellate tribunal. The `entire case' on review is a question of law." Am. Bioscience, Inc. v. Thompson, 269 F.3d 1077, 1083 (D.C. Cir. 2001) (collecting cases). Accordingly, this Court need not and ought not engage in lengthy fact finding, since "[g]enerally speaking, district courts reviewing agency action under the APA's arbitrary and capricious standard do not resolve factual issues, but operate instead as appellate courts resolving legal questions." James Madison Ltd. by Hecht v. Ludwig, 82 F.3d 1085, 1096 (D.C. Cir. 1996); see also Lacson v. U.S. Dep't of Homeland Sec., 726 F.3d 170, 171 (D.C. Cir. 2013) (noting, in an APA case, that "determining the facts is generally the agency's responsibility, not ours"); Sierra Club v. Mainella, 459 F.Supp.2d 76, 90 (D.D.C. 2006) ("Under the APA ... the function of the district court is to determine whether or not as a matter of law the evidence in the administrative record permitted the agency to make the decision it did.") (quotation marks and citation omitted)). Judicial review is limited to the administrative record, since "[i]t is black-letter administrative law that in an APA case, a reviewing court should have before it neither more nor less information than did the agency when it made its decision." CTS Corp. v. EPA, 759 F.3d 52, 64 (D.C. Cir. 2014) (internal citations and quotation marks omitted; alteration in original); see 5 U.S.C. § 706 ("[T]he Court shall review the whole record or those parts of it cited by a party....").
The plaintiff contends that his May and November 2013 EERs were "[f]alsely [p]rejudicial due to [o]mission," Pl.'s Mem. Supp. MSJ at 8, 21, ECF No. 12, because they did not adequately convey that the CPS was unusually difficult to supervise, see id. at 9, 21, and that the FSGB's conclusion to the contrary is arbitrary and capricious. Secondarily, the plaintiff asserts that the FSGB failed to adequately
The Court turns first to the plaintiff's argument that the FSGB failed to consider all relevant evidence and make proper findings of fact and then considers the plaintiff's arguments concerning the FSGB's alleged failure to follow its own precedent.
Before the FSGB, the plaintiff argued that the AFI in the May 2013 EER, which was the basis for the CTB's decision to defer a tenure determination, was falsely prejudicial. The AFI addressed the narrow issue of the counseling session between the plaintiff and the CPS, which occurred shortly after the plaintiff assumed his posting in Dubai and ended in the CPS threatening to destroy all public affairs programming and resign.
The FSGB's analysis of the plaintiff's claim that the May 2013 EER was falsely prejudicial is a textbook example of arbitrary and capricious decisionmaking. Although the decision amply sets out the parties' respective arguments and factual assertions, see AR at 403-15, it does not state which factual assertions laid out in the background section of the decision were credited and which were rejected, nor does the decision begin to grapple with the record evidence as to whether the EER was falsely prejudicial for failing to discuss the CPS's well-documented pattern of insubordinate behavior, as well as evidence of the plaintiff's supervisory skills. The FSGB correctly stated that no third-party accounts of the session were available, id. at 418, but the Board should not have ended its inquiry there, because not only is the evidence undisputed that the CPS's conduct was sufficiently egregious to warrant, at a minimum, counseling, but also the record contains significant circumstantial evidence as to the respective temperaments
As for evidence that the CPS was insubordinate, Mr. Waller himself recognized in an interrogatory response that "the CPS felt unaccountable to anyone" and that she "felt little respect for Mr. Aragon." Id. at 335. Likewise, Krista Lorenger, the Office Management Specialist at the U.S. Consulate in Dubai, attested that the plaintiff had "mentioned more than once, that [the CPS] was disrespectful and hard to manage" and that "[t]here were times she came in late or not at all, without letting Daniel know." Id. at 321. Moreover, the record shows that the CPS had an "apparent pattern" of abusing sick leave and would disappear from work for extended periods of time. Id. at 42; see also id. at 335 (describing the manner in which the CPS "took sick leave immediately before or after a block of annual leave[, which] suggest[ed] that she was abusing sick leave in order to augment her annual leave"). This apparently lax office culture was extant before the plaintiff's arrival, leaving him with the task of changing that culture to ensure that employees, such as the CPS, on the U.S. Government payroll complied with the most basic work performance rules of coming to work on time and providing notice of absences.
Yet more striking, as recounted in the background section of the FSGB's decision, the CPS was granted three days' leave to travel to Jordan but then failed to show up for work for a full 13 days, during which time the post was unable to locate a guest list for a "major election-related program that the [CPS] was supposed to have prepared and left in the files." Id. at 405. The plaintiff tried to reach the CPS to inquire about her whereabouts and the guest list, but she ignored the plaintiff's calls, texts, and emails. Id. at 10. According to the plaintiff, it was later discovered that the CPS had neglected to prepare the guest list. Id. When counseled about her absence by the plaintiff, the CPS apparently became very upset and threatened to resign. The plaintiff maintains that he conducted the counseling session "calmly and with concern." Id. The record contains evidence to suggest that the CPS's work ethic and performance behaviors were engrained because the Country PAO, Mr. Arbuckle, had long allowed the CPS to carry on as she pleased. See, e.g., id. at 321 ("[The CPS] was permitted to do whatever she wanted with the support of PAO Arbuckle.").
As for circumstantial evidence of the plaintiff's ability properly to handle counseling sessions, the FSGB inexplicably ignored the plaintiff's 2014 and 2015 EERs, both of which recommend that the plaintiff be granted tenure, and one of which was completed by Mssrs. Waller and Lejlic. The EERs praise the plaintiff for his management and interpersonal skills, as detailed above. Although these EERs were issued after the plaintiff was denied tenure and thus were not seen by the CTB in making that decision, the EERs were part of the record before the FSGB. They are at least probative of the plaintiff's interpersonal skills, and thus shed light on the extent to which the AFI in the May 2013 EER was falsely prejudicial. Consequently, the FSGB's failure to cite the 2015 EER, and its relegation of the 2014 EER to a footnote without meaningfully considering the EER's contents, was arbitrary and capricious. See, e.g., Morall v. Drug Enf't Admin., 412 F.3d 165, 178 (D.C. Cir. 2005) ("To be clear, DEA's decision does not withstand review because the agency decisionmaker entirely ignored relevant evidence."); Robinson v. Nat'l Transp. Safety Bd., 28 F.3d 210, 216 (D.C. Cir. 1994) (citing Burlington Truck Lines, Inc. v. United States, 371 U.S. 156, 168, 83 S.Ct. 239, 9 L.Ed.2d 207 (1962), and holding that it was arbitrary and capricious for the Board to ignore relevant testimony); compare Ackerman v. United States, 324 F.Supp.2d 1, 6 (D.D.C. 2004) (holding that the court cannot "second-guess" the FSGB's decision to "ascribe more importance" to certain EERs in the plaintiff's personnel file, but suggesting that it would be arbitrary and capricious for the FSGB to "fail[] to consider" EERs altogether).
The Board likewise failed to account for the testimonials offered by six of the plaintiff's colleagues, who worked with him in 2013, which are also probative of the plaintiff's demeanor in the workplace.
In setting out the parties' respective factual assertions but failing to grapple with any of the foregoing record evidence, the FSGB's decision closely resembles the FSGB decision that was rejected as arbitrary and capricious in Toy v. United
The Secretary contends that the AFI comment concerning the counseling session with the CPS was only one minor part of the EER, which on the whole was very positive about the plaintiff's performance. See Defs.' Mem. Supp. Cross-MSJ at 18 ("Aragon's arguments, however, ignore the limited criticism contained in the May 2013 EER. That criticism was limited to the observation that Aragon, as a supervisor, needs to be able to handle counseling sessions with employees."). Though true that the EER largely praised the plaintiff's work, as the FSGB itself noted, the AFI was dispositive of the decision initially to defer and ultimately to deny tenure. See Shea v. United States, 45 F.Supp.2d 54, 57 n.1 (D.D.C. 1999) (rejecting the Secretary's argument that the challenged EER was not falsely prejudicial because the EER was, "as a whole ... glowing" and explaining that "even the relatively minor criticisms highlighted by the plaintiff are properly considered in a review of the FSGB's decisions"). Furthermore, the Secretary appears to contend that the FSGB's analysis was satisfactory because the FSGB found that it was "not ... unreasonable" to expect the plaintiff to prevent the counseling session with the CPS from escalating. AR at 418. This conclusion, however, has little if any bearing on the ultimate question whether the inclusion of information about the CPS's pattern of insubordination and the concomitant challenge faced
The FSGB was not required to reach any particular conclusion based on the foregoing evidence, but the Board was required to at least consider the evidence in its analysis of the plaintiff's claims. Accordingly, remand to the FSGB for further proceedings is required. On remand, the FSGB should more fully account for the evidence in the record, make relevant factual findings, and connect those findings to the ultimate conclusion whether the May 2013 EER was falsely prejudicial. See Ehrman, 429 F.Supp.2d at 61 (remanding to the FSGB after finding that its decision was arbitrary and capricious); Toy v. U.S., 263 F.Supp.2d 1, 6 (D.D.C. 2002) ("This court remanded the plaintiff's case to the FSGB ... because of deficiencies in the FSGB's findings of fact.").
The plaintiff further argues that the FSGB's decision was arbitrary and capricious because, in finding that the May 2013 EER is not falsely prejudicial, "the FSGB failed to follow its own precedents." Pl.'s Mem. Supp. MSJ. at 13 (citing Mem. Op. at 17, Menyhert v. United States, Case No. 99-cv-3018 (D.D.C. Feb. 26 2001), ECF No. 24 ("[T]he Court finds that the conclusion of the FSGB ... departs from the FSGB's precedent and is internally inconsistent. Thus, the court finds ... the FSGB's decision is arbitrary and capricious.")); see also id. at 13-20.
"Like a court, `[n]ormally, an agency must adhere to its precedents in adjudicating cases before it.'" Jicarilla Apache Nation v. U.S. Dep't of Interior, 613 F.3d 1112, 1119-20 (D.C. Cir. 2010) (quoting Consol. Edison Co. of N.Y., Inc. v. FERC, 315 F.3d 316, 323 (D.C. Cir. 2003)). The D.C. Circuit has explained that an agency is "not required `to grapple with every last one of its precedents, no matter how distinguishable,'" U.S. Postal Serv. v. Postal Regulatory Comm'n, 842 F.3d 1271, 1274 (D.C. Cir. 2016) (quoting Jicarilla, 613 F.3d at 1120), but, "[a]t the same time, we have never approved an agency's decision to completely ignore relevant precedent," Jicarilla, 613 F.3d at 1120. "[A]n agency's failure to come to grips with conflicting precedent constitutes an inexcusable departure from the essential requirement of reasoned decision making." Id. Thus, "[w]hen an agency departs from its prior precedent without explanation, .... its judgment cannot be upheld." Manin v. Nat'l Tranp. Safety Bd., 627 F.3d 1239, 1243 (D.C. Cir. 2011). In this case, then, if the FSGB entirely ignored contradictory
According to the plaintiff, a long line of FSGB decisions "hold[s] that the failure to mention mitigating factors renders an EER criticism misleading or `falsely prejudicial,' in grievance terminology, or constitutes an `omission.'" Pl.'s Mem. Supp. MSJ at 13. The plaintiff cites numerous FSGB decisions but focuses on three cases that he describes as "strikingly similar to the instant case." Id. In FSGB Op. 1994-085/1995-036, the decision principally relied upon by the plaintiff, the grievant had received an EER that stated, in pertinent part, that he "patronized one staff member by speaking for [her]" during a meeting. FSGB Op. 1994-085/1995-036 at 17. The grievant challenged the EER as unfairly prejudicial for failing to mention the "difficulties of working with the staff member (his deputy) flowing from her particular sensitivities and perceptions." Id. The FSGB agreed, explaining that "it was incumbent on the rater to have recognized and in some manner reflected in the EER the complexities and challenges grievant faced in supervising his deputy." Id. at 18. Ultimately, the FSGB held that the EER was falsely prejudicial because its criticism of the grievant's managerial skills was "presented devoid of context." Id. The other FSGB decisions that the plaintiff cites involve roughly similar factual circumstances. See, e.g., FSGB Op. 2006-52 at 14 (finding "serious problems" with an LSE's performance, which were omitted from the grievant's EER, and holding that the EER was falsely prejudicial because "[t]he reasonable reader could not infer these mitigating circumstances [of the LSE's poor performance] from the strongly worded AFI");
The Court agrees with the plaintiff that FSGB Op. 1994-085/1995-036 appears remarkably similar to the instant case insofar as the plaintiff in FSGB Op. 1994-085/1995-036 argued that a criticism of his conduct vis-à-vis a subordinate employee in a one-off meeting, without any explanation of the broader context, was falsely prejudicial. The Secretary argues that the plaintiff has "overstated" the FSGB's previous holdings and that these cases are distinguishable from the instant case on their facts.
The plaintiff argues that the FSGB erred in validating the November 2013 EER because the EER "omits the key mitigating circumstance concerning the CPS, and the only examples [of the plaintiff's conduct] contradict the recommendation against tenure." Pl.'s Mem. Supp. MSJ at 21 (emphasis in original). Each argument is addressed in turn.
Like the May 2013 EER, the November 2013 EER took issue with the plaintiff's management of the CPS, though the criticism in the November EER was broader — addressing the plaintiff's relationship with the CPS writ large, rather
Id. at 43. As with the May 2013 EER, the plaintiff argues that the November 2013 EER is falsely prejudicial because it does not convey to the reader "key mitigating circumstances concerning the CPS," i.e., that she was "volatile, insubordinate, and exceptionally difficult to supervise." Pl.'s Mem. Supp. MSJ at 21. The Secretary contends that this argument fails because the criticism in the AFI "is not `excess[ive]' — but instead is tempered by praise — nor is it presented in an unusually `stark' manner." Defs.' Mem. Supp. Cross-MSJ at 23 (citing FSGB Op. 1994-85).
The FSGB appears to have largely overlooked the plaintiff's argument that the November 2013 EER was falsely prejudicial. The "Overview" section of the FSGB's decision, which is separate from the decision itself, notes that the Board concluded that the plaintiff "ha[d] not met his burden of proving that ... statements in his 2013 EERs were falsely prejudicial." AR at 400. In discussing the parties' positions, the FSGB further noted "[the plaintiff] contends that his being denied tenure stemmed from receiving two biased and falsely prejudicial EERs in 2013." Id. at 404 (emphasis added). Yet, the FSGB does not expressly circle back to the plaintiff's argument that the November 2013 EER was falsely prejudicial in its analysis of the plaintiff's claims. The balance of the FSGB's discussion about whether the EERs were falsely prejudicial is devoted to the May 2013 EER. See id. at 418-19. The FSGB's failure to engage with the plaintiff's claim that the November 2013 EER was falsely prejudicial is arbitrary
The plaintiff's second argument concerning the November EER is that the FSGB clearly erred in finding that the criticisms in his November EER "are supported by examples." AR at 417. According to the plaintiff, "the only examples [of the plaintiff's conduct] contradict the recommendation against tenure." Pl.'s Mem. Supp. MSJ at 21; see also id. at 22-23 (emphasis in original) (arguing that the November 2013 EER contains only "strongly positive examples of Plaintiff's supervisory and interpersonal skills" that contradict the criticisms in the EER).
The plaintiff contends that the FSGB "erred" in its final decision by not giving weight to the unjust circumstances of the assignment," including that (1) he reported to two supervisors — Mr. Waller and Mr. Arbuckle — with conflicting agendas; (2) he had not received adequate Arabic language training; and (3) the position required a more experienced officer. Pl.'s Reply at 32; see also Pl.'s Mem. Supp. MSJ at 29-35. Notwithstanding this contention, in its preliminary decision addressing the plaintiff's request for interim relief pending a final FSGB decision, the FSGB referenced each of these circumstances. Specifically, the FSGB acknowledged "that grievant found himself in a situation that would be challenging for any Public Diplomacy officer in his first assignment in that specialty," particularly that "[h]e reported directly to two officers — the [Consul General] (as rater) at the post where he was assigned ... and the [Country PAO] (as reviewer) in the capital city about an hour's drive away," but "that these two officers apparently often did not agree on [Public Diplomacy] program or
In light of this express language, the plaintiff's criticism of the FSGB as erring for not considering these same circumstances was initially unclear. Fleshing out this argument for the first time in his reply, the plaintiff appears to argue that the "purpose" of the career candidate program is to provide "`a comprehensive program of appropriate training, assignment, evaluation, counseling and review,'" Pl.'s Reply at 32 (quoting 3 FAM § 2241.2), and, "[i]n not making a finding of fact" as to whether the position was suitable for the plaintiff, "the Board violated Plaintiff's rights under the Foreign Service Act of 1980," id. at 33-34, which states that "the Board ... shall include findings of fact and a statement of reasons for the decision," 22 U.S.C. § 4137(a). To the extent that the circumstances of the plaintiff's tour in Dubai bear on his ultimate claims that the May and November 2013 EERs were falsely prejudicial, the FSGB should consider all the evidence concerning whether the PAO position was "suitable" for the plaintiff.
The plaintiff, the Foreign Service, and American taxpayers have invested heavily in the plaintiff's career as a Foreign Service officer, and the FSGB does a disservice when it renders a decision that ignores significant parts of record and fails to connect rationally the underlying facts to its ultimate conclusion. This is what the FSGB did in finding that the May and November 2013 EERs were not falsely prejudicial. For these reasons, the FSGB's decision is vacated with respect to its conclusion that these EERs were not falsely prejudicial, and this action is remanded to
An appropriate Order accompanies this Memorandum Opinion.
AR at 36.
