0520130256
04-15-2014
Complainant, v. Jacob J. Lew, Secretary, Department of the Treasury (Internal Revenue Service), Agency.
Complainant,
v.
Jacob J. Lew,
Secretary,
Department of the Treasury
(Internal Revenue Service),
Agency.
Request No. 0520130256
Appeal No. 0120113704
Agency No. IRS870002
DENIAL
Complainant requested reconsideration of the decision in EEOC Appeal No. 0120113704 (Oct. 23, 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).
BACKGROUND
EEO Complaints
Complainant had worked as an employee at the Agency, but left in July 1983 after refusing to be reassigned. While he was unemployed, Complainant withdrew $18,057.00 in retirement contributions from the Civil Service Retirement System (CSRS).
According to Complainant, he subsequently applied to be a Management Analyst at the Defense Property Disposal Region-Ogden and was tentatively selected for the position around July 12, 1984. His new prospective employer contacted Complainant's former supervisor for a reference, and the former supervisor allegedly made negative comments about Complainant: that he had represented all the malcontents against management, had been insubordinate, did not accept counsel, and abused work time requirements.
The selection was placed on hold while the new prospective employer investigated the former supervisor's negative comments. Eventually, Complainant was selected for the position of Management Analyst on August 27, 1984.
In a December 1984 meeting with his new employer's personnel office, Complainant allegedly learned that his delayed start time made him ineligible for the Civil Service Retirement System (CSRS), because he "was not on board within the prescribed one-year time frame for this benefit." Instead, he was placed in the Federal Employees Retirement System (FERS) for new employees.
On December 24, 1984, Complainant filed an EEO complaint, alleging that he was subject to reprisal for prior EEO activity when his former supervisor made negative references to his new prospective employer, thereby delaying his start time, and making him ineligible for the CSRS program. For relief, Complainant sought, among other things:
1. Whatever action necessary to fully reinstate the retirement program for which I qualified if [the former supervisor] had not provided his unjustified input; or a cash settlement of my determination reflecting the lost value of this program.
2. A cash settlement for the wages and benefits lost because of [the former supervisor's] actions.
3. An apology from [the former supervisor] or his superiors for publication through a negotiable period of time throughout the Ogden Service Center and at each location . . . which saw/heard [the former supervisor's] unfounded charges.
On April 4, 1985, Complainant filed a second EEO complaint, alleging that he was subjected to reprisal for prior EEO activity when, in September 1984, the former supervisor gave negative input about Complainant, which delayed Complainant's promotion to a higher grade. Specifically, the former supervisor stated that Complainant was not "honest, trustworthy or of good character," recommended that Complainant "should not be hired until his discharge case had been reviewed," and invited his new employer to review a "file at the Ogden Service Center before hiring" Complainant.
On July 7, 1985, the Agency's Regional Complaints Center issued a letter, proposing to dispose the two EEO complaints because the allegations were not supported by the evidence. Complainant rejected the proposed disposition and requested a hearing before an EEOC Complaints Examiner.
Settlement Negotiations and Agreement
While the hearing was pending, the parties entered into settlement negotiations. According to Complainant, in the summer of 1987, personnel officers from his new agency explained the CSRS-Offset category and how it related to retirement planning for Complainant. They indicated that those in the CSRS-Offset category would be grand-fathered in to the CSRS retirement system, if they chose this over the FERS system.
With this information, Complainant wrote to the EEOC on July 28, 1987 that he would settle the EEO complaints:
The complaints at issue were filed when the only apparent choice concerning retirement options was between FERS and CSRS; and CSRS definitely seemed the preferred alternative.
Now the CSRS-Offset option, which relates to my situation, has clouded the issue mentioned above. Research by alleged experts in the field suggests no definitive advantage for CSRS over CSRS-Offset. Therefore, while still somewhat uncomfortable with the uncertainties of the new option, I have identified no substantive reason to pursue these cases further.
On that same day, the parties entered into a settlement agreement, but with no mention about Complainant's retirement options:
1. All former supervisors of complainant who remain employed at the Ogden Service Center, including [the former Agency official], will be directed to refer any inquiries (written or oral) about the character of [Complainant's] service while at the Ogden Service Center to the Chief, Processing and Records Unit for reply.
2. On receipt of any inquiries regarding [Complainant's] employment at the Ogden Service Center, the Chief, Processing and Records Unit will reply that [Complainant] was performing his duties in a fully satisfactory manner at the time that he was reassigned to the Fresno Service Center. As a result of the transfer, no Official Personnel Files (OPF) for [Complainant] remain at the Ogden Service Center. [Complainant's] employment with the Internal Revenue Service was terminated when he declined this involuntary geographic reassignment.
3. The agency stipulates that after review of the actions taken by [the former Agency official] with reference to Form 49 dated September 26, 1981, there is no factual basis for comments made regarding the complainant.
4. The parties agree that all costs and fees (including attorney's fees) will be borne by the party incurring such costs and/or fees without recourse for reimbursement, in any amount from the other party.
5. This agreement does not constitute an admission by the agency of discrimination and/or any other wrongdoing.
6. This settlement agreement is for the mutual benefit of the parties and will not establish any precedent, nor will the agreement by used as a basis by the complainant or other persons or groups to seek or justify similar terms in any pending or subsequent case(s).
7. This settlement agreement shall constitute a full and complete settlement of any and all claims which the complainant may have against the agency, present and former agency employees or agents, and/or the United States of America as a result of the incidents or circumstances raised in the above-referenced complaints.
According to Complainant, his new employer's personnel staff advised against paying back the $18,057.00 in retirement contributions that he had earlier withdrawn during his unemployment. Complainant maintained that he was never "comfortable" with the retirement advice, but he had "no substantive reason" and could find no evidence for challenging the accuracy of the advice he was given.
Retirement
In 1991, Complainant left federal service after declining another geographic reassignment, and in 1992 withdrew the $2249.57 that he had paid into the CSRS-Offset program, relying on the previous advice from personnel staff that he could withdraw his retirement contributions without affecting his eligibility in the CSRS-Offset program.
When Complainant reached retirement age, he requested the U.S. Office of Personnel Management (OPM) to generate his retirement. On June 1, 2009, OPM indicated that he was not entitled to retirement benefits because all retirement deductions that were withheld from his salary during federal service had been refunded already.
On July 28, 2009, OPM again confirmed that its June 1, 2009 decision was correct, that there was nothing further payable from the U.S. Civil Service Retirement System because he had received a refund of all the contributions he had placed into the retirement fund.
After a congressional letter was sent to OPM on behalf of Complainant, OPM wrote in October 15, 2009:
[Complainant] forfeited all future retirement rights when he withdrew his civil service retirement deductions. The refund application he completed would have advised him of the forfeiture.
In accordance with the retirement law, [Complainant] may pay a redeposit for the withdrawn funds only if he is currently employed in a federal position subject to retirement coverage. While it is unfortunate that he did not realize the implication the latter refund had on his eligibility for a future retirement benefit, there is no provision that would permit him to make a redeposit without being a current federal employee.
On March 28, 2011, Complainant wrote to the EEOC's Phoenix District Office, asking to help him repay the $2249.87 into the CSRS system. He then wrote to the Agency on May 17, 2011 and treated the letter as alleging breach of the 1987 settlement agreement. The Agency determined that it had not breached the settlement agreement.
The Agency reasoned that the settlement agreement's terms were silent on any matters pertaining to Complainant's retirement plan or the CSRS. Because the settlement agreement contained no reference to retirement-related matters, whatever decisions Complainant voluntarily made regarding his federal retirement plans are not subject to and do not constitute a breach of this settlement agreement.
Previous Appellate Decision
Complainant appealed the Agency's decision, maintaining that he would not have lost his retirement benefits if it was not for the retaliatory actions that caused his EEO complaints in the first place.
In his appellate brief, Complainant further argued that the Agency's personnel staff had worked in conjunction with the personnel staff at his new agency to advise him, during settlement negotiations, that the CSRS-Offset option would guarantee him a CSRS retirement when he eventually retired. But because this did not occur, and because the Agency's personnel office's retirement advice led him to settle his complaints, Complainant invoked our regulations concerning compliance with settlement agreements by writing: "Per 29 CFR Section 1614.504(a), this Petition is for reinstatement of Petitioner's complaint from the point processing ceased due to the settlement assurances originated through the Defendant."
The previous appellate decision found that the Agency did not breach the settlement agreement. The fact that Complainant had doubts and uncertainties about his retirement benefits, they were not sufficient to void the settlement agreement. The previous appellate decision found that the Agency could not be held responsible for later changes in the law. At the time during settlement negotiations, the retirement advice given to Complainant had been correct. The fact that Complainant relied on two-year old advice to withdraw additional funds from his retirement account after leaving federal service does not give rise to a breach of agreement.
CONTENTIONS ON REQUEST FOR RECONSIDERATION
Complainant maintains that the previous decision clearly erred in analyzing this matter as a breach of settlement agreement. Complainant contends that he was appealing the "settlement process," rather than the settlement agreement.
His allegation is that the Agency worked with the new employer's personnel office to advise him about the CSRS-Offset retirement program, and to assure him that his CSRS benefits would be grandfathered in. "However, his application for retirement benefits decades later proved that the assurances offered; while well intended, were beyond the Agency/DDO Personnel Office's ability to deliver. No fault on any side accounts for this development, but the Agency is still responsible for the promised 'full relief' for its reprisals." Complainant maintains that the third term in the settlement agreement (the Agency's stipulation that there was no factual basis for comments made regarding the complainant) amounted to a finding that the former supervisor had retaliated against Complainant. Therefore, under EEOC's regulations governing remedies and relief for findings of discrimination, 29 C.F.R. � 1614.501(a), the Agency must provide "full relief," which includes his retirement benefits.
Complainant asks that EEOC reinstate the "CSRS aspects of his complaints at the stage that the Agency directed the DDO Personnel Office to address them. Another viable remedial alternative would be for the Agency to work with OPM and Complainant so he could repay the $2249.57 with interest to enable his planned/promised CSRS-offset retirement."
ANALYSIS
At the outset, we find that the previous decision did not clearly err in analyzing this matter as a breach of settlement. In his brief in support of his appeal, Complainant explicitly invoked our regulations governing compliance with settlement agreements, 29 C.F.R. � 1614.504(a). That regulation provides, in relevant part: "If the complainant believes that the agency has failed to comply with the terms of a settlement agreement or decision . . . . the complainant may request that the terms of settlement agreement be specifically implemented or, alternatively, that the complaint be reinstated for further processing from the point processing ceased." One of the remedies Complainant sought, and continues to seek, is to reinstate "aspects of his complaints" from the point processing ceased.
Given Complainant's explicit citation to the procedures for seeking compliance with a settlement agreement, and his requested resolution consistent with those found in breach of settlement claims, we find that the previous decision did not clearly err in characterizing and analyzing this matter as a breach of settlement.
And reviewing this matter as a breach of settlement claim, we find the previous decision did not clearly err in finding no breach. The terms of the settlement agreement were clear: it constituted a full and complete settlement of any and all claims which the complainant may have against the agency as a result of the incidents or circumstances raised in his complaints. The terms of the settlement agreement had no provisions about his retirement situation, so there could be no breach concerning his dispute with OPM about his eligibility for retirement benefits.
As for Complainant's remaining arguments, we note as follows:
First, Complainant appears to argue that the EEOC has jurisdiction to remedy this retirement matter because the Agency's factual stipulation in the settlement agreement (that there was no factual basis for the former supervisor's negative comments about Complainant) constituted a finding of discrimination, for which the Agency was required to provide "full relief," presumably the relief outlined in Complainant's formal EEO complaint ("whatever action necessary to fully reinstate the retirement program").
This argument is flawed because the factual stipulation was not an admission of discrimination or liability. The Agency simply stipulated that the former supervisor had no factual basis for making negative comments about Complainant. The stipulation did not go further articulating or speculating about the true motives of the former supervisor, whether he did it because of a personal dislike for Complainant, because he was simply mistaken, or because he was motivated by retaliatory animus. Therefore, the factual stipulation alone does not constitute an admission by the Agency of liability for employment discrimination. Furthermore, we note that the fifth provision of the settlement agreement explicitly provides: "This agreement does not constitute an admission by the agency of discrimination and/or any other wrongdoing."
We find that there was no finding of discrimination in this matter, therefore, Complainant is not entitled to the full relief he outlined in his formal EEO complaint, under 29 C.F.R. 1614.501(a), which applies only to actual findings of discrimination.
Second, Complainant appears to argue that his eligibility status for CSRS was in fact a term of the settlement agreement, whose breach requires the reinstatement of that aspect of his formal EEO complaint. Complainant appears to reason that because the CSRS retirement was one of the remedies Complainant listed in his formal EEO complaint, and because that part of his relief was addressed during settlement negotiations, it ought to be effectively considered a viable settlement term, whose breach can provide grounds for reinstatement of his complaint.
We are not convinced by this argument. For example, we note that the formal EEO complaint contained other requested remedies that were not part of the final settlement agreement, such as a request for a "cash settlement for the wages and benefits lost because of [the former supervisor's] actions." The final settlement agreement is silent on this remedy. Yet Complainant does not appear to argue that the absence of such a lump sum payment amounts to a breach and grounds to reinstate the complaint. Complainants are free to list whatever remedies they seek in a formal EEO complaint. But that does not mean they are entitled to every form or amount of remedy that they seek. During settlement negotiations, the parties may emphasize or jettison certain remedies or amounts, and we presume that when they sign the settlement agreement, the parties expect to be bound by whatever terms remain. The fact that an agency does not ultimately provide some of the remedies originally specified in an EEO formal complaint, and which were not included in the final settlement agreement, does not give complainants the license to claim breach and reinstate the complaint.
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(c), and it is the decision of the Commission to deny the request. The decision in EEOC Appeal No. 0120113704 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
___4/15/14_______________
Date
2
0520130256
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0520130256