22 U.S.C. § 4134 — Time limitations

Page 1546 TITLE 22—FOREIGN RELATIONS AND INTERCOURSE § 4132 § 4132. Grievances concerning former members or their survivors Within the time limitations of section 4134 of this title, a former member of the Service or the surviving spouse (or, if none, another member of the family) of a deceased member or former member of the Service may file a grievance under this subchapter only with respect to alle- gations described in section 4131(a)(1)(G) of this title. (Pub. L. 96–465, title I, § 1102, Oct. 17, 1980, 94 Stat. 2143.) § 4133. Freedom of action (a) Nature of protection Any individual filing a grievance under this subchapter (hereinafter in this subchapter re- ferred to as the ‘‘grievant’’), and any witness, labor organization, or other person involved in a grievance proceeding, shall be free from any re- straint, interference, coercion, harassment, dis- crimination, or reprisal in those proceedings or by virtue of them. (b) Right to representation (1) The grievant has the right to a representa- tive of his or her own choosing at every stage of the proceedings under this subchapter. (2) In any case where the grievant is a member of a bargaining unit represented by an exclusive representative, but is not represented in the grievance by that exclusive representative, the exclusive representative shall have the right to appear during the grievance proceedings. (3) The grievant, and any representative of the grievant who is a member of the Service or em- ployee of the Department, shall be granted rea- sonable periods of administrative leave to pre- pare and present the grievance and to attend proceedings under this subchapter. (c) Administrative leave for witnesses Any witness who is a member of the Service or employee of the Department shall be granted reasonable periods of administrative leave to ap- pear and testify at any proceedings under this subchapter. (d) Records (1) No record of— (A) a determination by the Secretary to re- ject a recommendation of the Foreign Service Grievance Board, (B) a finding by the Grievance Board against the grievant, or (C) the fact that a grievance proceeding is pending or has been held, shall be entered in the personnel records of the grievant (except by order of the Grievance Board as a remedy for the grievance) or those of any other individual connected with the grievance. Nothing in this subsection shall prevent a griev- ant from placing a rebuttal to accompany a record of disciplinary action in such grievant’s personnel records nor prevent the Department from including a response to such rebuttal, in- cluding documenting those cases in which the Board has reviewed and upheld the discipline. (2) The Department shall maintain records pertaining to grievances under appropriate safe- guards to preserve confidentiality. (3) The Foreign Service Grievance Board may enforce compliance with the requirements of paragraphs (1) and (2). (e) Expedition of security clearance procedures The Department will use its best endeavors to expedite security clearance procedures whenever necessary to assure a fair and prompt resolution of a grievance. (Pub. L. 96–465, title I, § 1103, Oct. 17, 1980, 94 Stat. 2143; Pub. L. 106–113, div. B, § 1000(a)(7) [div. A, title III, § 329], Nov. 29, 1999, 113 Stat. 1536, 1501A–438.) Editorial Notes AMENDMENTS 1999—Subsec. (d)(1). Pub. L. 106–113 inserted at end ‘‘Nothing in this subsection shall prevent a grievant from placing a rebuttal to accompany a record of dis- ciplinary action in such grievant’s personnel records nor prevent the Department from including a response to such rebuttal, including documenting those cases in which the Board has reviewed and upheld the dis- cipline.’’ § 4134. Time limitations (a) Limitations period A grievance is forever barred under this sub- chapter unless it is filed with the Department not later than two years after the occurrence giving rise to the grievance or, in the case of a grievance with respect to the grievant’s rater or reviewer, one year after the date on which the grievant ceased to be subject to rating or review by that person, but in no case more than three years after the occurrence giving rise to the grievance. There shall be excluded from the computation of any such period any time during which, as determined by the Foreign Service Grievance Board, the grievant was unaware of the grounds for the grievance and could not have discovered such grounds through reasonable dili- gence. (b) Failure of Department to resolve grievance; grievance filed with Foreign Service Griev- ance Board If a grievance is not resolved under Depart- ment procedures (which have been negotiated with the exclusive representative, if any) within ninety days after it is filed with the Depart- ment, the grievant or the exclusive representa- tive (on behalf of a grievant who is a member of the bargaining unit) shall be entitled to file a grievance with the Foreign Service Grievance Board for its consideration and resolution. (c) Grievances based on alleged discrimination (1) In applying subsection (a) with respect to an alleged violation of a law, rule, regulation, or policy directive referred to in section 4131(a)(1)(H) of this title, the reference to ‘‘2 years’’ shall be deemed to read ‘‘180 days’’, sub- ject to paragraph (2). (2) If the occurrence or occurrences giving rise to the grievance are alleged to have occurred while the grievant was assigned to a post abroad, the 180-day period provided for under paragraph (1) shall not commence until the ear- lier of— (A) the date as of which the grievant is no longer assigned to such post; or Page 1547 TITLE 22—FOREIGN RELATIONS AND INTERCOURSE § 4135 (B) the expiration of the 18-month period be- ginning on the date of the occurrence giving rise to the grievance or the last such occur- rence, as the case may be. (Pub. L. 96–465, title I, § 1104, Oct. 17, 1980, 94 Stat. 2144; Pub. L. 102–138, title I, § 153(b), Oct. 28, 1991, 105 Stat. 673; Pub. L. 106–113, div. B, § 1000(a)(7) [div. A, title III, § 330(a), (b)], Nov. 29, 1999, 113 Stat. 1536, 1501A–438; Pub. L. 107–228, div. A, title III, § 317, Sept. 30, 2002, 116 Stat. 1379.) Editorial Notes AMENDMENTS 2002—Subsec. (a). Pub. L. 107–228 substituted ‘‘but in no case more than three years’’ for ‘‘but in no case less than two years’’. 1999—Subsec. (a). Pub. L. 106–113, § 1000(a)(7) [div. A, title III, § 330(a)], in first sentence, substituted ‘‘not later than two years after the occurrence giving rise to the grievance or, in the case of a grievance with respect to the grievant’s rater or reviewer, one year after the date on which the grievant ceased to be subject to rat- ing or review by that person, but in no case less than two years after the occurrence giving rise to the griev- ance.’’ for ‘‘within a period of 3 years after the occur- rence or occurrences giving rise to the grievance or such shorter period as may be agreed to by the Depart- ment and the exclusive representative.’’ Subsec. (c)(1). Pub. L. 106–113, § 1000(a)(7) [div. A, title III, § 330(b)], substituted ‘‘ ‘2 years’ ’’ for ‘‘ ‘3 years’ ’’. 1991—Subsec. (a). Pub. L. 102–138, § 153(b)(1), inserted ‘‘under this subchapter’’ before ‘‘unless’’. Subsec. (c). Pub. L. 102–138, § 153(b)(2), added subsec. (c). Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 1999 AMENDMENT Pub. L. 106–113, div. B, § 1000(a)(7) [div. A, title III, § 330(c)], Nov. 29, 1999, 113 Stat. 1536, 1501A–438, provided that: ‘‘The amendments made by this section [amend- ing this section] shall take effect 180 days after the date of enactment of this Act [Nov. 29, 1999] and shall apply to grievances which arise on or after such effec- tive date.’’ EFFECTIVE DATE OF 1991 AMENDMENT Amendment by Pub. L. 102–138 not applicable with re- spect to any grievance, within the meaning of section 4131 of this title, arising before Oct. 28, 1991, see section 153(f) of Pub. L. 102–138, set out as a note under section 4115 of this title. § 4135. Foreign Service Grievance Board (a) Establishment; composition There is established the Foreign Service Grievance Board (hereinafter in this subchapter referred to as the ‘‘Board’’). The Board shall consist of no fewer than 5 members who shall be independent, distinguished citizens of the United States, well known for their integrity, who are not employees of the Department or members of the Service. (b) Appointment and selection of nominees; length of terms; vacancies The Chairperson and other members of the Board shall be appointed by the Secretary of State, from nominees approved in writing by the agencies to which this subchapter applies and the exclusive representative (if any) for each such agency. Each member of the Board shall be appointed for a term of 2 years, subject to re- newal with the same written approvals required for initial appointment. In the event of a va- cancy on the Board, an appointment for the un- expired term may be made by the Secretary of State in accordance with the procedures speci- fied in this section. In the event of inability to obtain agreement on a nominee, each such agen- cy and exclusive representative shall select 2 nominees and shall, in an order determined by lot, in turn strike a name from a list of such nominees until only one name remains. For pur- poses of this section, the nominee whose name remains shall be deemed to be approved in writ- ing by each such agency head and exclusive rep- resentative. (c) Compensation Members of the Board who are not employees of the Government shall be paid for each day they are performing their duties (including trav- eltime) at the daily equivalent of the maximum rate payable for grade GS–18 of the General Schedule under section 5332 of title 5. (d) Removal The Secretary of State may, upon written no- tice, remove a Board member for corruption, ne- glect of duty, malfeasance, or demonstrated in- capacity to perform his or her functions, estab- lished at a hearing (unless the right to a hearing is waived in writing by the Board member). (e) Administrative services; payment of expenses; assignment as staff employees of Board; per- formance evaluation reports; records The Board may obtain facilities, services, and supplies through the general administrative services of the Department of State. All ex- penses of the Board, including necessary costs of the travel and travel-related expenses of a griev- ant, shall be paid out of funds appropriated to the Department for obligation and expenditure by the Board. At the request of the Board, em- ployees of the Department and members of the Service may be assigned as staff employees for the Board. Within the limits of appropriated funds, the Board may appoint and fix the com- pensation of such other employees as the Board considers necessary to carry out its functions. The individuals so appointed or assigned shall be responsible solely to the Board, and the Board shall prepare the performance evaluation re- ports for such individuals. The records of the Board shall be maintained by the Board and shall be separate from all other records of the Department of State under appropriate safe- guards to preserve confidentiality. (f) Report (1) Not later than March 1 of each year, the Chairman of the Foreign Service Grievance Board shall prepare a report summarizing the activities of the Board during the previous cal- endar year. The report shall include— (A) the number of cases filed; (B) the types of cases filed; (C) the number of cases on which a final de- cision was reached, as well as data on the out- come of cases, whether affirmed, reversed, set- tled, withdrawn, or dismissed; (D) the number of oral hearings conducted and the length of each such hearing;