TRIBULATIONS, BULLYING, AND ACCOUNTABILITY
(CT:PER-1230; 05-24-2025)
(Office of Origin: GTM)
3 FAM 1541 The Ordinary Tribulations of the Workplace
(CT:PER-1230; 05-24-2025)
(a) Euphemisms generally, and euphemisms for misconduct in particular, such as “bullying” or “workplace conflict” are a form of dissembling. Euphemisms cause employees to dodge the ultimate question raised in all instances of alleged misconduct: whether an employee’s continued employment is consistent with the efficiency of the Service. All employees are required to approach this question with the gravity that it deserves. “Workplace conflict” is not an off-ramp that allows employees to avoid the necessary task of reporting and inquiring into misconduct allegations as such.
(b) To be sure, employees may often feel like they are in conflict with one another. Whenever such feelings are caused by potential or actual misconduct, they ought to result in misconduct reporting and inquiry. But the essence of employees’ professional relationship is union, not conflict: all employees serve one President, one Department, one Bureau, and one office. No matter how one slices the organizational cross-section, employees are joined in service to a single mission rather than poised in conflict with one another.
(c) Sometimes, however, workplace behaviors that cannot support a factual finding of misconduct are nonetheless truly and reasonably frustrating to an employee. These are “the ordinary tribulations of the workplace.” Of any behaviors that may constitute “the ordinary tribulations of the workplace,” what they have in common is that, even if a fact finder determines that such a behavior occurred, it is very unlikely by itself to warrant a referral for disciplinary action. The Department’s non-exhaustive lists of offenses subject to discipline are found in 3 FAM 4130 (“Suitability”), 3 FAM 4370 (“Foreign Service”), 3 FAM 7720 (“LE Staff”), and 3 FAM 4540 (“Civil Service”).
(d) The ordinary recourse for the ordinary tribulations of the workplace is communication. Employees who experience ordinary tribulations with one another are expected to be capable of mature communication, whether orally or in writing, with a mutual commitment toward reducing tribulation through reasonable adjustments to one another that do not adversely affect any employees’ efficient performance of their duties and responsibilities. Managers should ensure that these interactions are courteous and professional, and that they are appropriately documented in a timely manner. These conversations shall be memorialized. When such communication does not reduce the tribulation within a reasonable amount of time, employees may request intervention by a supervisor, human resources officer, or other applicable Department program.
(e) Behavior that starts as “the ordinary tribulations of the workplace” can escalate in scope and severity to a degree that implicates misconduct. For example, behavior that intentionally and unnecessarily perpetuates tribulations of the workplace in spite of reasonable attempts to address it, or behavior that evinces retaliation or reprisal against employees, including but not limited to retaliation or reprisal for their reasonable efforts to address tribulations of the workplace, would, if adequately recorded, support a fact-finder’s determination that an employee has committed misconduct. Such circumstances warrant referral for discipline, up to and including separation or removal, for reasons that include, but are not limited to:
• offenses listed in 3 FAM 7720 (“LE Staff”) (e.g., “Conduct creating a work environment that is hostile, intimidating or abusive; behavior toward others that a reasonable person would consider humiliating, intimidating, exclusionary, retaliatory, or threatening” or “Rude, boisterous activity that adversely affects performance and/or an orderly workplace environment; use of disrespectful, abusive or offensive language, quarreling or inciting to quarrel”); or
• offenses listed in 3 FAM 4540 (“Civil Service”) and 3 FAM 4370 (“Foreign Service”) (e.g., “creating a disturbance which adversely affects efficiency” or “failure to address a toxic workplace”).
3 FAM 1542 Actions Have Consequences
(CT:PER-1230; 05-24-2025)
(a) Even when a first approach to managing conduct or performance includes conversation and active management, that misconduct or poor performance should still be appropriately reported, documented, and investigated, as appropriate. In the past, the Department published an incoherent list of behaviors that caused at least some employees to falsely believe that illegal or even criminal behavior amounted to mere “bullying” that can be resolved through voluntary and consequence-free alternative dispute resolution. Although this list caused significant confusion, it provides a useful starting point for helping employees understand the types of behaviors that require the attention of Diplomatic Security, performance or conduct management, and/or the pursuit of an inquiry or investigation:
(1) “Physically blocking entrance or egress to an office or a cubicle,” “invading personal space,” and “screaming, shouting, and/or throwing objects in anger” are not “bullying.” Worse, behaviors such as these can be the predicate for an investigation of criminal misconduct and should be reported to Diplomatic Security, which shall conduct fact-finding and determine the severity of a reported incident.
(2) “Denial of leave without a substantive, resource-based, or performance-based rationale” is not “bullying,” it is potentially a violation of an employee’s rights under 3 FAM 3412(a) (“An employee who has followed prescribed procedures for requesting and receiving approval of annual leave has a right to that leave”) and an example of poor performance by a supervisor under 3 FAM 3412(c) (“the supervisor must not deny or cancel leave for arbitrary or capricious reasons”). In this and similar situations, an employee should report the denial of leave (or other performance-related issue) to the denying (or performing) employee’s supervisor. And when a supervisor is made aware of misconduct or poor performance by a direct report, he or she must address it appropriately and immediately, including through honest performance evaluation and/or referral for discipline: no employee shall be subjected to retaliation or reprisal for good-faith reporting of performance or misconduct to a supervisor when such reporting is corroborated by factual records and by reference to apparent office policies, practices, or applicable law and guidance including, but not limited to, the Foreign Affairs Manual and the Foreign Affairs Handbook. When good faith reporting results in retaliation or reprisal, and such retaliation and reprisal and attempts to appropriately address it are adequately documented, then such retaliation or reprisal may form the basis of a factual finding that warrants referral for discipline, up to and including separation or removal, for reasons that include—but are not limited to—those:
• offenses listed in 3 FAM 7720 (“LE Staff”) (e.g., “Conduct creating a work environment that is hostile, intimidating or abusive; behavior toward others that a reasonable person would consider humiliating, intimidating, exclusionary, retaliatory, or threatening” or “Rude, boisterous activity that adversely affects performance and/or an orderly workplace environment”); or
• offenses listed in 3 FAM 4540 (“Civil Service”) or 3 FAM 4370 (“Foreign Service”) (e.g., “taking reprisal action against an employee as a result of or in anticipation of a grievance, appeals, complaint, or other exercise of rights,” “creating a disturbance which adversely affects efficiency,” or “failure to address a toxic workplace”). See also 3 FAM 4542(b) (“Civil Service”) and 3 FAM 4372(b) (“Foreign Service”).
(3) “Silencing, interrupting, or ignoring an
employee” and “unreasonably refusing to communicate, or excluding
someone from meetings, emails, and verbal readouts that are necessary for their
work” and “interfering with a person’s personal property or
workspace without an immediate work-related need to do so” are not
examples of “bullying.” Rather, these are the types of incidents
that often amount to “the ordinary tribulations of the workplace,”
especially when such incidents occur only once or rarely and are justified by
an employee’s appropriate exercise of discretion. For example, the
Secretary may reasonably silence, interrupt, or ignore an employee who
contradicts the foreign policy of the United States during a meeting involving
the Secretary and a foreign head of state.
But when it is adequately documented that such behavior occurs repeatedly and
without justification, and such behavior is not remedied through reasonable
communication and intervention, or such behavior relates to other retaliatory
or otherwise adversary behaviors, then a fact finder examining the totality of
the circumstances may determine that the behavior warrants referral for
discipline, up to and including separation or removal, for reasons that
include—but are not limited to—those:
• offenses under 3 FAM 7720 (“LE Staff”) (e.g., “Conduct creating a work environment that is hostile, intimidating or abusive; behavior toward others that a reasonable person would consider humiliating, intimidating, exclusionary, retaliatory, or threatening” or “Rude, boisterous activity that adversely affects performance and/or an orderly workplace environment”); or
• offenses under 3 FAM 4540 (“Civil Service”) and 3 FAM 4370 (“Foreign Service”) (e.g., “creating a disturbance which adversely affects efficiency” or “failure to address a toxic workplace”).
(4) “Making and/or circulating derogatory or humiliating remarks about a Department employee”; “Directing personal insults, obscene gestures, and/or foul language at a Department employee,” and a “targeted effort to destroy the reputation or interpersonal relationships of another” should be reported and inquired as misconduct, and are not to be considered as “bullying”. In each case the totality of circumstances is unique. But if adequately documented, and especially when repeated even in spite of reasonable efforts at communication, intervention, and performance and conduct management, behaviors such as these may warrant referral for discipline, up to and including separation or removal, for reasons that include—but are not limited to—those:
• offenses listed in 3 FAM 4130 (“Suitability”) (e.g. “Notoriously disgraceful conduct is that conduct which, were it to become widely known, would embarrass, discredit, or subject to opprobrium the perpetrator . . .”); or
• offenses listed in 3 FAM 7720 (“LE Staff”) (e.g. “Defamation – knowingly making false, malicious or unauthorized disclosures against other employees, supervisors or damaging the reputation, authority or official standing of colleagues,” “Conduct creating a work environment that is hostile, intimidating or abusive; behavior toward others that a reasonable person would consider humiliating, intimidating, exclusionary, retaliatory, or threatening,” or “Rude, boisterous activity that adversely affects performance and/or an orderly workplace environment; use of disrespectful, abusive or offensive language, quarreling or inciting to quarrel”); or
• offenses listed in 3 FAM 4540 (“Civil Service”) or 3 FAM 4370 (“Foreign Service”) (e.g. “use of abusive or obscene language to or about another person,” “Making false or unfounded statements concerning another officer or employee of the U.S. Government,” “Conduct demonstrating untrustworthiness, unreliability, or use of poor judgment,” or “immoral, indecent, unethical, criminal, infamous, dishonest, or notoriously disgraceful conduct”).