BEFORE THE FOREIGN SERVICE GRIEVANCE BOARD

In the Matter Between

Record of Proceedings
FSGB Case No. 2012-066
Grievant
And

February 6, 2014

Department of State

INTERIM DECISION
EXCISION

_________________________________

For the Foreign Service Grievance Board:

Presiding Member:

Warren R. King

Board Members:

Lois E. Hartman

Special Assistant

Frank Coulter
(term expired September 30, 2013)
Joseph J. Pastic

Representative for the Grievant:

Neera Parikh
American Foreign Service Association

Representative for the Department:

Dorian Henderson, HR/G

Grievance Analyst

Employee Exclusive Representative:

American Foreign Service Association

CASE SUMMARY
HELD: The Board found the Department misapplied 3 FAM 4854 when it ruled against
grievant in his request for a suggestion certificate and cash award for a suggestion the
Department 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 its
decision not to grant him a suggestion certificate and cash award after it had implemented his
suggestion to issue Foreign Service specialists with appointment certificates signed by the
Secretary. He first submitted the suggestion in 2004 and resubmitted it in 2005 after the initial
suggestion was rejected. The second attempt was also rejected, but grievant continued to
advocate the appointment certificate program, both on his own and with AFSA and other
colleagues. 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 to
bring 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. He
filed a grievance with the Department arguing that the official who disapproved his suggestion
award was, at the same time, the deciding official in a disciplinary action to be taken against
grievant and therefore should have recused himself from making a decision on the award. The
Department rejected his grievance in which he sought a suggestion certificate and a cash award
as remedies. In its decision the Department relied on the presumption of regularity on the part of
public 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, which
precludes recipients of a cash award for a suggestion from any further claim against the
Government. 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 for
the suggestion itself but for his work to bring the suggestion to fruition and for his long record of
work 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 Secretarys
disapproval of the suggestion award was not justified in this case. The Board remanded the
matter to the Department for reconsideration of a suggestion certificate and cash award for
grievant.

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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,1 but 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

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

The action memorandum noted that AFSA had sent a letter in November 2005 renewing its request that the
Department 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) 3 and 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
3

5 USC 2302 (b) (10) reads: (b) Any employee who has authority to take, direct others to take, recommend, or
approve 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 of
the employee or applicant or the performance of others.
4
5 CFR 2635.502 concerns impartiality in performing official duties, in particular regarding business and personal
relationships. Grievant stated that under this section, an employee is required to consider whether the employee's
impartiality would reasonably be questioned if the employee were to participate in a particular matter involving
specific parties where persons, with certain personal or business relationships with the employee are involved and
recuse himself as appropriate. Section 2635.502(a) reads:
(a) Consideration of appearances by the employee. Where an employee knows that a particular matter
involving 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 represents
a party to such matter, and where the employee determines that the circumstances would cause a reasonable
person with knowledge of the relevant facts to question his impartiality in the matter, the employee should
not participate in the matter unless he has informed the agency designee of the appearance problem and
received 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, an
employee 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 section
would raise a question regarding his impartiality should use the process described in this section to
determine 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
5

3 FAM 4854 (Award Nullifies Future Claims) reads 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.
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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 all the 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 and
cash award based on the tangible benefits of the suggestion. I assert that 4500+
printed and signed certificates are tangible. I assert that improvement to morale
and to performance is tangible. I assert being able to see a certificate signed by
the Secretary over your own desk is tangible. I assert that the improved
performance 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 tangible benefits. 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 apply
to this circumstance. 3 FAM 4852 states A suggestion must directly contribute
to the economy, effectiveness, or efficiency of Government operations in order to
be considered for an award. ...and ideas that improve the quality, effectiveness, or
timeliness of a Government function or improve service to the public. The
citation of my meritorious honor award acknowledges that the issuance of an
appointment certificate to FS Specialists improves morale and corrects a
discrepancy. The implementation of the FS Specialist certificate program clearly
improves the effectiveness and efficiency of Government operations and
improves 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 to participate 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 failed to 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 not present 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 approved in 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
6

Contrary to the Departments assertion concerning the ALDAC messages, the record shows that it was a message
from AFSA, sent through Department channels, which thanked grievant by name. The Departments message did
not mention him by name. Also, the Department attributed the decision by the Secretary to sign the specialist
certificates to Secretary Rice, but it was Secretary Clinton who was in office when that decision was made.
7
22 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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makers impartiality can be fairly questioned when deciding the award matter when, at the exact
same time, he was also considering a disciplinary matter which included many allegations in the
nature of sexual harassment by grievant directed at female subordinates.
The Department argues, however, that there is a judicially created presumption of
regularity in the actions of government officials and grievant has not provided sufficient
evidence to the contrary.8 We find that the invocation of the presumption in the context of most
grievance appeals does not alter the evidentiary positions or burdens of either party and therefore
does not change the Boards analysis in its assessment of the proof. In an unpublished decision
by the District Court for the District of Columbia in William Shea v. United States, et. al., (Civ.
No. 00-748, June 27, 2001), the court endorsed the Foreign Service Grievance Boards
conclusion that the presumption of regularity was inherent in its regulation (22 CFR 905.1)
placing the burden of proof on grievants, thus acknowledging that the agency is presumed to
have acted regularly unless a grievant proves otherwise by a preponderance of the evidence. The
Board is aware of no other court decision analyzing the presumption of regularity within the
specific context of appeals before the FSGB.
There may be limited circumstances in which an evidentiary matter before the Board,
e.g., a routine administrative undertaking that calls for no exercise of judgment or discretion,
may be accorded the presumption of regularity. The determination to deny an award made here,
however, does not qualify as such a routine action.9 Instead the decision denying the award was

. Citing, LaChance v White, 174 F.3d 1378 (Fed. Cir. !999), quoting from Alaska Airlines Inc. v. Johnson, 8 F.3d
791 (Fed. Cir. 1993).
9
A survey of the appellate cases reveals that that in most instances the presumption of regularity is applied in
circumstances involving routine actions by the agency that are unlike matters that are presented to the Board. See
e.g. LaChance, supra note 8 at 1381 (Implementation of educational standards for schools contracting with an
agency for educational services) and Alaska Airlines, supra note 8 at 795 (travel agents employed by agency
presumed to act in good faith to meet regulatory goal of securing the lowest cost travel {for government
employees].). See also, Riggs Natl Corp. v. Commr, 295 F.3d 16. 21 (D.C. Cir. 2002)( validity of document
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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 regularity beyond 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.10 The 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, 201112 the 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 the
second 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 reconsideration
with respect to one of those specifications. On remand the Department imposed a one day suspension and that
determination 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
based on a number of allegations of unwanted contacts by

which was
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 or now, 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 cash
awards when recommended by two different offices, it is our impression in those circumstances that awards are
generally 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 should
speak 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.15 In 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 anew by 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 to
grievants concerns on this point and reject the Departments suggestion 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 actions he 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

16

3 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 or
service or sustained outstanding performance. The following criteria are applicable to granting a
Meritorious 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 summit
meeting);
(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 post
or bureau level.
17
As noted earlier, 3 FAM 4850 and 3 FAH-1 H-4850 describe the suggestion awards program. 3 FAH-1 H-4817
and 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
18

Grievant 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 labor organization, 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.
19
5 USC 7102 reads:
Each employee shall have the right to form, join, or assist any labor organization, or to refrain from any
such activity, freely and without fear of penalty or reprisal, and each employee shall be protected in the
exercise 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, to
present the views of the labor organization to heads of agencies and other officials of the executive branch
of the Government, the Congress, or other appropriate authorities, and
(2) to engage in collective bargaining with respect to conditions of employment through representatives
chosen 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. King
Presiding Member

Lois E. Hartman
Member
Frank J. Coulter
Former Member term expired September 30, 2013

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