2020001013•EEOC Appeal 2020001013
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Gerry W., 1 Petitioner, v. Robert Wilkie, Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency. Petition No. 2020001013 Petition No. 0420140003 Agency No. 200P-0605-2002100863 DECISION ON A PETITION FOR ENFORCEMENT On October 28, 2019, Petitioner, by and through his attorney, filed with the Equal Employment Opportunity Commission (EEOC or Commission) a petition to enforce the Order set forth in EEOC Appeal No. 0420140003 (April 29, 2016). 2 The Commission accepts this petition for enforcement pursuant to 29 C.F.R. § 1614.503. BACKGROUND Petitioner was employed by the Agency as a Physician (Chief) VM-0602-10, at the Jerry L. Pettis Memorial Veterans Medical Center in Loma Linda, California. He was terminated effective November 9, 2001. On January 9, 2002, Petitioner filed equal employment opportunity (EEO) complaint 200P-0605- 2002100863 alleging that he was terminated in violation of Title VII of the Civil Rights Act of 1 This case has been randomly assigned a pseudonym which will replace Petitioner’s name when the decision is published to non-parties and the Commission’s website. 2 This matter was originally docketed by EEOC as an appeal from a final Agency determination (FAD) dated September 20, 2019. However, upon further review, it is clear that, in name and substance, it was intended as a petition for enforcement.
2020001013 2 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. The Agency investigated the complaint, and Petitioner requested a hearing. During the hearing process, on January 22, 2010, the parties resolved the case with a settlement agreement which provided, in pertinent part, that: 7. The Agency will effectuate appropriate documentation to reflect that [Petitioner] had uninterrupted service through the effective date of the settlement agreement, whereupon he has agreed to retire. The Agency will make applicable employee and employer contributions to the retirement system, including FERS [Federal Employees Retirement System] and social security and take any other necessary steps to effectuate this agreement. The Agency will take these actions within 60 days of the effective date of this settlement agreement. In May 2010, Petitioner notified the Agency’s EEO function that the Agency had breached Term 7 of the settlement agreement. After three months passed without a determination on this claim, Petitioner filed an appeal with the Commission. A day later, the Agency issued a determination that it had, in fact, breached Term 7. The Commission agreed, finding this apparently occurred based on the mistaken belief by Agency payroll that Office of Personnel Management (OPM) regulations prevented the Agency from making these contributions. EEOC Appeal No. 0120103420 (Feb. 14, 2011). The Commission ordered the Agency to implement Term 7. Thereafter, in July 2011, Petitioner filed a petition, as supplemented, with the Commission for enforcement of its Order in EEOC Appeal No. 0120103420, since the Agency did not properly calculate and document the amounts owed under Term 7, including its social security contributions were understated by $144,620.20, its FERS contributions were understated by $339,709.82, and it failed to provide calculation for its contributions to his Thrift Savings Plan (TSP). In EEOC Petition No. 0420140003 (Apr. 29, 2016), the Commission determined that while the Agency argued it complied with the Order, in the absence of an Agency statement addressing the alleged errors Petitioner identified, the Agency failed to do so by paying the correct amount of retirement benefits. The Commission found that the record contained no explanation on how the Agency calculated the contributions it made for Petitioner’s FERS, social security, and TSP, and generally ordered it to comply with Term 7. 3 By letter dated June 7, 2019, by and through his attorney, Petitioner notified the Agency’s EEO function that the Agency was still in breach of Term 7. He explained, as later elaborated upon, that he was recently advised by his attorney that his monthly annuity payment was less than he would have thought had Term 7 been fully implemented, and after numerous conversations with OPM in 2019, believed the Agency may have provided the wrong dates of his service to OPM. 3 While the above litigation history also involved other settlement agreement terms, only Term 7 is at issue here.
2020001013 3 Petitioner asked the Agency to review the information it provided OPM to ensure that it provided his correct dates of service and salary information. Prior to issuing the FAD, the Agency’s EEO function consulted with an Agency benefits specialist via email, who discussed how retirements are processed and gave an accompanying link to the FERS retirement form. The emails and a blank FERS form are in the record. The FAD found or referenced as follows: The FERS form asks the employee to provide his service dates and asks the Agency to do the same based on the employee’s OPF. The employee then signs the FERS form certifying that the dates of service are correct. After the employee retires, the retirement package is then sent to the Defense Finance Accounting Service (DFAS), which after adding the employee’s salary and retirement contributions forwards the package to OPM for adjudication. When there are discrepancies (e.g., between OPF based service dates and payroll records), OPM reaches out to the Agency for clarification and corrections, and OPM notifies the employee if it determines the Agency provided dates of service that OPM disagrees are creditable. OPM offers an appeals process for employees who disagree with its retirement application adjudication, and employees can appeal to the Merit Systems Protection Board (MSPB). The Agency concluded in effect, that Petitioner did not prove it breached Term 7. The Agency also found that the doctrine of laches applied – an equitable remedy under which an individual’s failure to diligently pursue their legal remedies can bar their claim. It recounted that Petitioner was receiving his FERS retirement benefit for the better part of a decade before raising the service dates issue and saw the service history the Agency put on the FERS form before that, so he knew or should have known of the service dates matter years before. In his petition for enforcement, Petitioner requests that the Commission enforce its Order in EEOC Petition No. 0420140003 that the Agency comply with the Term 7 provision for the Agency to make the applicable employee and employer contributions, including for FERS and social security. He states that he served in the U.S. Army/National Guard for 29 years, and starting in 1983 was employed by the Agency during extensive intervals when not on military duty, implying the Agency may have made errors in his service date information it gave OPM. In opposition to the petition for enforcement, the Agency argues that it complied with the Order in EEOC Petition No. 0420140003, suggests laches applies, and argues that Petitioner’s claim that his FERS annuity was incorrectly calculated is a collateral attack on OPM’s determination. ANALYSIS AND FINDINGS In the Agency’s compliance report dated April 18, 2011, created to show it complied with the Commission’s Order in EEOC Appeal No. 0120103420, was a series of Notification of Personnel Actions, Standard Form 50 (SF-50), evidencing Petitioner was continuously employed by the Agency from dates prior to his termination on November 9, 2001, through his voluntary retirement effective January 22, 2010. Each SF-50 evidences the position, grade and total annual salary, including pay adjustments.
2020001013 4 In its compliance report dated October 7, 2016, created to show it complied with the Commission’s Order in EEOC Petition No. 0420140003, the Agency included a spreadsheet, completed with the assistance of its Financial Services Center and DFAS, listing contributions the Agency made for Petitioner’s FERS annuity broken down by contributions made by Petitioner and the Agency on an annual basis from December 21, 2001 through December 18, 2010, and a lump sum social security payment made on March 26, 2011, broken down by the amounts attributed to the Agency and Petitioner. To the extent Petitioner contends that the Agency’s submission to OPM, made in conjunction with DFAS, had inaccuracies regarding his service and salary history prior to his termination, we find that this is outside the parameters of the settlement agreement. Moreover, we find that Petitioner’s generalized concern that his FERS, and perhaps social security annuities, are lower than they should be and this may have been caused by errors in his service and/or salary history is insufficient, without more particularity, to establish breach, or for the Commission to order the Agency again to provide more documentation and/or look further into the matter. 4 Accordingly, regarding Term 7, we find that the Agency is in compliance with the Commission’s order in EEOC Petition No. 0420140003. COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (S0610) You have the right to file a civil action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. If you file a civil action, you must name as the defendant in the complaint the person who is the official Agency head or department head, identifying that person by his or her full name and official title. Failure to do so may result in the dismissal of your case in court. “Agency” or “department” means the national organization, and not the local office, facility or department in which you work. If you file a request to reconsider and also file a civil action, filing a civil action will terminate the administrative processing of your complaint. RIGHT TO REQUEST COUNSEL (Z0815) If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. 4 Because we have made this finding, we need not determine if Petitioner’s petition for enforcement is barred by laches or uses the EEO process to collaterally attack the OPM retirement process.
2020001013 5 Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant’s Right to File a Civil Action for the specific time limits). FOR THE COMMISSION: ______________________________ Carlton M. Hadden’s signature Carlton M. Hadden, Director Office of Federal Operations September 3, 2020 Date
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