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Toy v. United States

July 30, 2002


The opinion of the court was delivered by: Ricardo M. Urbina, United States District Judge

Document Nos. 26, 29



This case comes before the court after having been remanded to the Foreign Service Grievance Board ("FSGB") for further review and proceedings consistent with the court's December 7, 2000 order directing that the FSGB clearly articulate its findings of fact and analysis of precedent when reaching its decision to refuse to remove the plaintiff's negative employee evaluation report ("EER") from the plaintiff's personnel file. The plaintiff is a U.S. foreign service officer who seeks judicial review of the FSGB's decision on remand. He moves the court for summary judgment pursuant to Federal Rule of Civil Procedure 56 asserting that the FSGB's decision violates the Foreign Service Act of 1980, as amended, 22 U.S.C. § 3901 et seq. ("FSA"), the Administrative Procedure Act, as amended, 5 U.S.C. § 701 et seq. ("APA"), and the Fifth Amendment's Due Process Clause. The defendants are the United States and Colin Powell, named in his official capacity as Secretary of State. Also before the court is the defendants' motion for summary judgment pursuant to Rule 56. The case is now ripe for adjudication since the FSGB's decision on remand meets the requirements set out by this court's remand order. After consideration of the parties' submissions and the relevant law, the court grants in part and denies in part the parties' cross-motions for summary judgment thereby ordering the defendants to strike from the plaintiff's EER all references to the plaintiff's alleged excessive reliance on questionably narrow interpretations of laws and regulations. In all other respects, the court determines that the FSGB's decision on remand is not arbitrary and capricious and, thus, does not violate the APA.


A. Factual Background

The plaintiff is a tenured Class 3 foreign service officer who joined the Foreign Service in 1984. Mem. of P. & A. in Supp. of Pl.'s Mot. for J. on the Pleadings ("Pl.'s Mot.") at 5. From August 27, 1995 to April 15, 1996, the plaintiff served as an Administrative Officer ("AO") at the U.S. Consulate General in Bombay (now Mumbai), India. Id. at 5. The plaintiff was the direct supervisor of two Americans, one of whom was Susan Frost, the post's General Services Officer ("GSO"), and he indirectly supervised 15 Foreign Service Nationals ("FSNs") and a 66-person guard force. Id. at 6. The parties agree that the plaintiff and Ms. Frost had a difficult and contentious relationship from the outset. Id. at 5-6; Defs.' Mot. for Summ. J. ("Defs.' Mot.") at 2. The plaintiff's working relationship with Ms. Frost constitutes the majority of the negative comments in his EER for the period of his tour in Mumbai. Administrative Record ("A.R.") at 56-58. The plaintiff believes that his EER is falsely prejudicial against him because it places the majority of blame for the strained relationship between the plaintiff and Ms. Frost on the plaintiff rather than on Ms. Frost. Pl.'s Mot. at 5.

Each year, foreign service selection boards evaluate foreign service officers to determine who will be promoted or selected out (i.e., mandatorily retired). Id. at 5. The selection boards base their recommendations on an officer's performance file, which consists primarily of EERs. Id. EERs reflect the assessment of two supervisors - in this case, Consul General Louis Warren in Mumbai (the rater for the plaintiff's EER) and Administrative Counselor William Kelly in New Delhi (the reviewer for the plaintiff's EER) - who review the subject employee's job performance during the review period in question. Defs.' Statement of Undisputed Material Facts ("Defs.' Statement") at 2.

The plaintiff recounts several instances of insubordinate behavior by Ms. Frost including her refusal to write weekly reports, her objection to advance authorization of overtime work, and noncompliance with policies concerning the transmission of messages by cable. *fn1 Pl.'s Mot. at 5. Both Consul General Warren and Administrative Counselor Kelly were aware of the troubled relationship. Id.; Defs.' Statement at 1-2. To prevent further friction between the plaintiff and Ms. Frost, Consul General Warren removed Ms. Frost from the plaintiff's supervision in February 1996. Defs.' Statement at 2. The plaintiff alleges that this was done to avoid a threatened Equal Employment Opportunity ("EEO") complaint by Ms. Frost against Consul General Warren. Pl.'s Mot. at 6. Administrative Counselor Kelly also visited Mumbai twice during the rating period, once in October 1995 and once in March 1996, to counsel the plaintiff and Ms. Frost about their strained working relationship. Id. at 5-6, Defs.' Statement at 2.

On May 1, 1996, Consul General Warren and Administrative Counselor Kelly completed the plaintiff's EER for the period from August 27, 1995 to April 15, 1996. A.R. at 58. In the EER, both Warren and Kelly recognized the plaintiff's relationship with Ms. Frost as troublesome. A.R. at 56, 58. Warren wrote, "Steve's [(the plaintiff's)] method of showing disapproval to his GSO subordinate helped contribute to a significant conflict that required intervention to maintain Post morale." A.R. at 56. Similarly, Kelly added, "The major shortfall in Steve Toy's performance has been in the area of interpersonal skills, and more specifically in his inability to reconcile interpersonal differences with the untenured junior officer [(Ms. Frost)] who serves as General Services Officer under his guidance." Id. at 58. In June 1996, the U.S. Ambassador in New Delhi requested via cable that the Director General of the Foreign Service curtail the plaintiff's assignment in Mumbai. Id. at 85-86. The Ambassador stated, "In a word, I have lost confidence in Mr. Toy's judgment and ability to serve as Mumbai's Administrative Officer and conclude that the best interests of all concerned would be served by his departure and reassignment." Id. at 86. Subsequently, in July 1996, the U.S. Department of State returned the plaintiff to duty in Washington, D.C. Id. at 87. The plaintiff is now posted in Moscow as a U.S. foreign service officer. Pl.'s Mot. at 1.

B. Procedural Background

On January 20, 1998, the plaintiff filed a grievance concerning his EER with the U.S. Department of State. On March 10, 1998, the U.S. Department of State denied all relief. On May 10, 1999, the plaintiff timely appealed that decision to the FSGB. On November 4, 1999, without a hearing, the FSGB denied all requested relief to the plaintiff. On April 8, 2000, the plaintiff filed a complaint for relief from final agency action in this court. By its Memorandum Opinion and Order ("Mem. Op.") dated December 7, 2000, this court granted in part and denied in part the plaintiff's motion for judgment on the pleadings, remanding the case to the FSGB "for specific findings of fact and a full and clear articulation of the reasons for the FSGB's decision." Mem. Op. dated Dec. 7, 2000 at 2.

On remand before the FSGB, no hearing was held. Each party submitted briefs that presented no new evidence. Pl.'s Mot. at 7. The FSGB again denied all relief in its June 14, 2001 Decision on Remand. Pl.'s Pet. for Review of Agency Decision on Remand at 1. *fn2 On December 7, 2001, the plaintiff petitioned for a review of the Decision on Remand. The plaintiff also moved for judgment on the pleadings, which the court converted sua sponte to a motion for summary judgment because of the court's reliance on evidence outside the pleadings. FED. R. CIV. P. 12(c); Order dated June 13, 2002. The court allowed the parties an opportunity to supplement their submissions related to the plaintiff's newly created motion for summary judgment but neither side elected to do so. The defendants also move for summary judgment. These cross-motions for summary judgment are now before the court and are ripe for decision. *fn3 On June 17, 2002, the court, on the plaintiff's motion, ...

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