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SALLEH v. CHRISTOPHER

February 13, 1995

JAMARI SALLEH, Plaintiff,
v.
WARREN M. CHRISTOPHER, Secretary of State, Defendant.



The opinion of the court was delivered by: GLADYS KESSLER

 I. Introduction

 Plaintiff Jamari Salleh was a career (tenured) Foreign Service Officer with the Department of State (hereinafter "the Department"). In 1989, the Department first proposed to separate her from the Foreign Service. In May of 1992, the Foreign Service Grievance Board (hereinafter "the Board") concluded that good cause had not been established for her termination. In June of 1993, the Secretary of State, disagreeing with the Board, issued a Decision and Order separating Plaintiff from the Foreign Service.

 The issue now before the Court is whether the Secretary of State has the authority to overrule, or reverse, a decision of the Foreign Service Grievance Board and terminate a Foreign Service Officer after the Board has ruled that cause for separation has not been established by the Department. For the reasons set forth below, the Court concludes that the Secretary did not have the authority to overrule the Foreign Service Grievance Board and terminate Ms. Salleh's employment as a Foreign Service Officer with the State Department.

 II. Statement of Facts1

 Plaintiff Jamari Salleh had been employed by the Department of State as a Foreign Service Officer from January, 1981 until June 30, 1993. Administrative Record at 74 ("AR"). She was assigned to a salary class in the Foreign Service Schedule and was serving under a career appointment. Although it is undisputed that she was employed by the United States Government for a total of eighteen years, the record does not indicate where she worked before 1981. Affidavit of Jamari Salleh at P 2 ("Salleh Affidavit").

 Plaintiff served as a Consular Officer in several overseas posts, as well as Department headquarters, between January, 1981 and June 30, 1993. AR at 74. Her performance as a Consular Officer, with a few exceptions, was exemplary, and her last four performance appraisals were at an extremely high level. AR at 517-530 and 949-953.

 In April 1981, after her initial training as a Foreign Service Officer in what is called the Consular cone, a particular area of specialization, she was assigned to the American Embassy in Mexico City. Her official duties included working on the visa line in an extremely busy and contentious working environment and serving as EEO officer. AR 81-82. As part of her responsibilities she handled an EEO case in which it was alleged that the Deputy Chief of Mission was the discriminating official. Although the complainant prevailed, the handling of this case, at a time when Ms. Salleh was one of the most junior Embassy officers, took a personal toll on her, and she began to drink heavily.

 Both Ms. Salleh's parents were alcoholics, and her father died of alcohol-related medical problems. She began consuming alcohol at the age of 21. While she now understands that she suffers from the disease of alcoholism, she was unaware of that condition during the 1981-1989 period.

 In July, 1983, Plaintiff was assigned as Consular Officer in Montreal. AR 78. During this tour of duty, her alcoholism was exacerbated by a hostile work environment stemming from gossip and misinformation pertaining to the EEO responsibilities she had handled in Mexico City. She was not recommended for tenure.

 Despite the fact that provisions of the Foreign Affairs Manual ("FAM") mandate certain steps that should be taken with regard to alcoholic Foreign Service Officers, 3 FAM 695 et seq., the Department took no further action to help Ms. Salleh address her problem.

 In August 1985, while in Montreal, Plaintiff filed a discrimination complaint against the Defendant. During the investigation of that complaint, one of the Department's attorneys assigned to its Office of Equal Employment Opportunity and Civil Rights came to the conclusion that Ms. Salleh suffered from an alcohol or other substance abuse problem. Once again, no action was taken with respect to her condition. AR 83, 90.

 In 1985, Plaintiff was informed that she would be terminated because she had not been granted "tenure" or career status and was transferred to Washington, D.C.. She remained unassigned for four months, during which time she remained at home and became increasingly morose. AR 83, 97-98; Salleh Affidavit P 9. Her active alcoholism increased. It was during this period of time that she falsified two travel vouchers which she later submitted for reimbursement.

 In August of 1986, as part of the settlement of her 1985 discrimination complaint, Ms. Salleh was given additional time in which to obtain tenure. She was then assigned as a Consular Officer to the American Embassy in the Dominican Republic. Despite the fact that she continued to consume alcoholic beverages, Plaintiff was evaluated as an "excellent officer", was recommended for tenure by all her supervisors, and ultimately obtained it in November, 1988. AR 517-525,

 Thereafter, she was selected to be a supervisor in the consular section of the American Embassy in London, which was a highly competitive position. She was also nominated to attend the Advanced Consular Course which was available only to consular officers considered to be outstanding by the Department.

 Plaintiff returned to the United States in January 1989 to take the Advanced Consular Course. AR 84. She was then interviewed by the Office of Inspector General about the two reimbursement vouchers which she had fraudulently submitted in violation of 18 U.S.C. § 287. AR 84. She admitted having filled out and submitted the fraudulent vouchers.

 On January 24, 1989, a federal grand jury in the Eastern District of Virginia indicted Plaintiff on two felony counts of submitting false claims against the government in violation of 18 U.S.C. §§ 287, 2. Complaint, P 18; AR 14, 19.

 In January 1989, Plaintiff confronted for the first time the fact that she was an alcoholic, Salleh Affidavit, P 13, and on January 30, 1989, contacted the Department's Chief of the Alcohol Awareness Program, George Sweeney, who determined that she was in the middle to late stages of alcoholism. AR 264. On February 5, 1989, Plaintiff was admitted to a residential treatment program at the Caron Foundation, in Wernersville, Pennsylvania, a facility used by the State Department as a referral source for employees with problems relating to alcoholism and substance abuse. AR 264. *fn2" Upon her successful completion of the program, she was discharged on March 10, 1989. She entered the Aftercare Group Series at Suburban Hospital in Washington, D.C., AR 295, and participated on a weekly basis in the Department's Alcoholics Anonymous program. AR 264.

 On March 10, 1989, Plaintiff pled guilty to the second of the two felony counts for which she had been indicted. Complaint, P 18; AR 14, 20, 206-210, 245-249. In April 1989, she was sentenced to a three-year suspended prison term, four years on probation, restitution and a fine. AR 75. *fn3"

 In May 1989, the Department proposed to revoke Plaintiff's security clearance as a result of her conviction. On June 21, 1989, the acting Director General of the Foreign Service, William L. Swing, proposed that Plaintiff be separated from the Foreign Service pursuant to 22 U.S.C. § 4010(a)(1) and Department of State regulations, 3 FAM 767.5, because of her felony conviction. AR 254-257. On August 30, 1989, Plaintiff submitted a written response to the proposed separation arguing that the proposed separation for cause for conduct related to alcoholism would constitute illegal discrimination in violation of the Rehabilitation Act of 1973, 29 U.S.C. § 701 et seq ("Rehabilitation Act"). AR 267-283. Subsequently, on December 11, 1989, the Department determined that she should be separated from the Service based on her criminal conviction, AR 258-59, *fn4" rejecting her claim that her conduct was related to her alcoholism.

 A full adversarial hearing was held before the Foreign Service Grievance Board on August 22, 1991. AR 603-876. Plaintiff never disputed that she committed the crime for which she entered a guilty plea. Instead she argued, and the Board agreed, that this conduct, which occurred before she entered treatment, was a result of her alcoholism.

 On May 14, 1992, the Board issued a decision that the Department had not established good cause for terminating Plaintiff and to do so was in violation of the Rehabilitation Act. AR 73-107. The Board found that at the time of the acts giving rise to Plaintiff's criminal conviction, she was an active alcoholic, that her criminal acts were a direct result of that alcoholism, that the Department had done nothing to carry out its responsibilities to deal with Plaintiff pursuant to 3 FAM 695, et seq., and that since returning from in-patient treatment she had been continuously employed by the Department and had received outstanding performance ratings. Consequently, the Board concluded that the Department did not establish that Ms. Salleh should be separated from the Service for such cause as would promote the efficiency of the service. AR 106-107.

 On June 12, 1992, the Secretary filed a "Request for Clarification" with the Board. On August 4, 1992, the Board denied the request and no further action was taken by the Department. From October 1990 until June 30, 1993, Plaintiff was assigned to the Visa Office in Washington, D.C. and continued to receive outstanding evaluations. AR 100-105.

 On June 1, 1993, the Secretary of State issued a Decision and Order separating Plaintiff from the Foreign Service for such cause as will promote the efficiency of the Service, effective 30 days from the date of the Order. AR 14-40. On June 30, 1993, the Board advised the Secretary of State that he did not possess the legal authority to terminate Plaintiff under the circumstances of her case. AR 940-946. On July 2, 1993, Plaintiff's salary was discontinued by the Department and she has been unemployed since that time.

 On November 23, 1993, Plaintiff filed this suit under the Foreign Service Act of 1980, as amended, 22 U.S.C. § 3901 et. seq. and the Administrative Procedure Act, 5 U.S.C. § 701 et. seq., seeking a declaratory judgment that the Board's May 1992 decision is final and enforceable and that the Secretary of State acted ultra vires by involuntarily separating her and failing to reinstate her; reinstatement, back-pay, attorney's fees and other related financial compensation; and ...


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