Aragon v. Tillerson

• Decision Date: 23 February 2017
• Docket Number: Civil Action No. 16–129 (BAH)
• Citation: 240 F.Supp.3d 99
• Parties: Daniel P. ARAGON, Plaintiff, v. Rex TILLERSON, in his official capacity as Secretary of State, et al., Defendants.
• Court: U.S. District Court — District of Columbia

240 F.Supp.3d 99

Daniel P. ARAGON, Plaintiff,

v.Rex TILLERSON, in his official capacity as Secretary of State, et al., Defendants.

Civil Action No. 16–129 (BAH)

United States District Court, District of Columbia.

Filed February 23, 2017

Bridget R. Mugane, Columbia, MD, for Plaintiff.

Jeremy S. Simon, U.S. Attorney's Office for the District of Columbia, Washington, DC, for Defendant.

MEMORANDUM OPINION

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 354.¹

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 the tenure denial was predicated, and the Foreign Service Grievance Board ("FSGB") upheld the State Department's decision.² Alleging that the FSGB's decision was "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law," in violation of the Administrative Procedure Act, 5 U.S.C. § 706(2)(A), the plaintiff seeks, inter alia , an order directing the State Department to remove from his personnel file the two performance evaluations on which the denial of tenure was predicated, Compl., Relief ¶ 3, ECF No. 1; an order rescinding the tenure decisions predicated on those evaluations, id. ; an order directing the State Department to reinstate the plaintiff retroactively, with back pay and benefits, id. ¶ 4; and an order directing the State Department to place the plaintiff in the same promotional class he would be in had he received tenure in the winter of 2013, id. ¶ 5. Pending before the Court are the plaintiff's motion for summary judgment, see generally Pl.'s Mot. Summ. J. ("Pl.'s MSJ"), ECF No. 12, and the Secretary's cross-motion for summary judgment, see generally Defs.' Mot. Summ. J. ("Defs.' MSJ"), ECF No. 14. For the reasons set out below, the plaintiff's motion for summary judgment is granted in part and denied in part, without prejudice, the Secretary's cross-motion for summary judgment is denied without prejudice, and this action is remanded to the FSGB for further proceedings.

I. BACKGROUND

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.

A. Obtaining Tenure in the Foreign Service

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) "[c]andidate is unlikely to serve effectively even with additional experience;" (3) "[c]andidate is likely to serve effectively but judgment is contingent on additional evaluated experience;" or (4) "[c]andidate is recommended for tenure and can be expected to serve successfully across a normal career span." AR at 35.

B. The Plaintiff's Denial of Tenure

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.

1. First Tenure Review

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.

2. Second Tenure Review

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 for a major election-related program that the employee was supposed to have prepared and left in the files." AR at 405. When, per Mr. Waller's instructions, the plaintiff met with the CPS to discuss her absence, the CPS became very upset and "started yelling and threatening to destroy all Public Affairs programming and quit." Id. The plaintiff maintains that Mr. Waller "initially supported [his] actions" to counsel the CPS but later "blamed [the plaintiff] for [the CPS's] behavior and did not support him for the remainder of the rating period." Id. at 290.

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...