0520120540
04-01-2014
Complainant v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Headquarters), Agency.
Complainant
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Headquarters),
Agency.
Request No. 0520120540
Appeal No. 0120102946
Agency No. 1I-536-0005-99
DENIAL
Complainant timely requested reconsideration of the decision in EEOC Appeal No. 0120102946 (June 20, 2012). EEOC regulations provide that the Commission may, in its discretion, grant a request to reconsider any previous Commission decision where the requesting party demonstrates that: (1) the appellate decision involved a clearly erroneous interpretation of material fact or law; or (2) the appellate decision will have a substantial impact on the policies, practices, or operations of the agency. See 29 C.F.R. � 1614.405(c).
On November 28, 2000, the parties entered into a settlement agreement that resolved Complainant's EEO complaint. The settlement agreement provided, in pertinent part, the following:
4g) If Complainant returns to duty pursuant to her acceptance of the permanent rehabilitation job offer referenced in subparagraphs 4d), 4e), and 4f) above, the Agency agrees that Complainant's place on the Agency's seniority roster or board shall be immediately below and junior to the employee who was immediately above and senior to Complaint [sic] as of January 17, 1998. The Agency further agrees that if Complainant returns to duty pursuant to her acceptance of the permanent rehabilitation job offer referenced in subparagraphs 4d), 4e), and 4f) above, the Agency shall deem Complainant to have been employed continuously from Complainant's date of hire, September 12, 1987, to the effective date of such return to duty.
On May 3, 2010, Complainant alleged that the Agency breached the settlement agreement. Specifically, Complainant claimed that on January 6, 2010, she received an annuity estimate that indicated that her retirement computation date (RCD) was December 18, 1998, instead of the original May 30, 1986, RCD. Complainant further claimed that on January 11, 2010, she informed the Agency's Human Resources Center (HRSCC) that its calculation of her RCD was incorrect. Complainant claimed that on February 11, 2010, she received a letter from HRSSC that indicated that her RCD would be changed from May 30, 1986, to November 26, 1987, and her leave computation date from June 22, 1987, to December 18, 1998, because of the deduction from her service of leave without pay (LWOP) in excess of 1,040 hours in one year. Complainant also claimed that in a letter dated February 17, 2010, she informed HRSCC that according to the settlement agreement, she was entitled to an RCD of May 30, 1986, but the HRSCC still calculated her RCD as November 26, 1987.
In its letter of determination, the Agency dismissed Complainant's breach claim as untimely raised. Alternatively, the Agency determined that it did not breach the settlement agreement because the RCD was not within the purview of the agreement. The letter also reported that an Agency official involved in settlement agreement negotiations stated that the Agency agreed to deem Complainant as continuously employed for purposes of maintaining her craft seniority for bidding purposes and annual leave selections, but not to place Complainant in a pay status for the entire LWOP period.
In her reconsideration request, Complainant contends that the Agency complied with the settlement agreement until it changed her RCD on January 6, 2010. "From the time of the settlement agreement and after [Complainant] purchased back time as a casual and part-time flexible clerk/carrier, the Agency had correctly used May 30, 1986, as her RCD," Complainant maintains. Complainant's Brief, p. 2. Complainant further notes that on January 11, 2010, she wrote to HRSCC to seek an explanation for her changed RCD, and in a letter dated February 11, 2010, the Agency informed Complainant that if she did not submit documentation supporting her Workers Compensation payment claims or a back pay award, HRCC would change her retirement computation date from May 30, 1986, to November 26, 1987, because Complainant had accrued more than 1040 hours of LWOP in a year. Complainant maintains that the Agency improperly calculated her RCD because the settlement agreement provided that the Agency would use her date of hire "as the date the Agency was to use for all purposes." Complainant's Brief, p. 7.
Upon review, we note that RCDs are used to determine the amount of government service creditable toward eligibility for retirement benefits. See Office of Personnel Management (OPM), FERS Information, available online at http://www.opm.gov/retirement-services/fers-information/computation/. Generally, creditable government service is federal service in which the individual's pay is subject to retirement deductions, which includes service under a career or career-conditional appointment. Id. Consequently, the date on which a federal employee is hired is not synonymous with his or her RCD.
In this case, the settlement agreement states that the Agency would deem Complainant's date of hire to be September 27, 1987. Complainant maintains that her RCD should be a different date, May 30, 1986. As such, Complainant acknowledges that her date of hire is distinct from her RCD. Complainant's date of hire reflects her entry into federal service, but does not reflect her creditable service for retirement benefits. If Complainant wanted to bargain for a particular RCD date, she was free to bargain for the inclusion of such a term into the settlement agreement. As such, we find that our previous decision did not clearly err when it affirmed the Agency's determination that it did not breach the settlement agreement.
Accordingly, after reviewing the previous decision and the entire record, the Commission finds that the request fails to meet the criteria of 29 C.F.R. � 1614.405(b), and it is the decision of the Commission to DENY the request. The decision in EEOC Appeal No. 0120102946 remains the Commission's decision. There is no further right of administrative appeal on the decision of the Commission on this request.
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (P0610)
This decision of the Commission is final, and there is no further right of administrative appeal from the Commission's decision. 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.
RIGHT TO REQUEST COUNSEL (Z0610)
If you decide to file a civil action, and if you do not have or cannot afford the services of an attorney, you may request from the Court that the Court appoint an attorney to represent you and that the Court also permit you to file the action without payment of fees, costs, or other security. See Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.; the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c). The grant or denial of the request is within the sole discretion of the Court. Filing a request for an attorney with the Court does not extend your time in which to file a civil action. Both the request and
the civil action must be filed within the time limits as stated in the paragraph above ("Right to File a Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
April 1, 2014
Date
2
0520120540
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0520120540