0420140005
07-03-2014
Petitioner v. Carolyn W. Colvin, Acting Commissioner, Social Security Administration, Agency.
Petitioner
v.
Carolyn W. Colvin,
Acting Commissioner,
Social Security Administration,
Agency.
Petition No. 0420140005
Appeal No. 0120112493
Agency No. DEN-08-0456-SSA
DECISION ON PETITIONS FOR CLARIFICATION AND ENFORCEMENT
On January 29, 2014, the Equal Employment Opportunity Commission (EEOC or Commission) docketed the Agency's November 25, 2013, petition for clarification to examine the enforcement of an Order set forth in EEOC Appeal No. 0120112493 (September 23, 2013). On April 24, 2014, Alvern C. Weed (Petitioner) filed a petitioner for enforcement alleging that the Agency failed to comply fully with the Order. The Commission accepts the petitions pursuant to 29 C.F.R. � 1614.503.
BACKGROUND
At the time of events giving rise to this complaint, Petitioner worked as a Procurement Analyst, GS-11, Step 9, for the United States Air Force. On July 22, 2008, Petitioner filed a formal complaint alleging that the Agency discriminated against him on the bases of age and reprisal for prior EEO activity by precluding him from applying for the position of GS-7 Claims Representative in September 2006 and July 2007, and the position of GS-5/8 Service Representative in July 2007 and September 2007. Petitioner retired from federal employment on June 1, 2008.
At the conclusion of the investigation, Petitioner requested a hearing before an EEOC Administrative Judge (AJ). The AJ held a hearing on September 28 and 29, 2010. On February 15, 2011, the AJ issued a decision finding that Petitioner had established that the Agency engaged in reprisal in violation of the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq., with respect to the July 2007 Claims Representative position and the July and September 2007 Service Representative positions. Noting that Petitioner retired from federal service in 2008, the AJ found that Petitioner "would not have retired but for the lengthy commute between work in Great Falls [where Petitioner worked for the Department of the Air Force] and Kaispell [where Petitioner sought employment with the Agency]."
The AJ ordered, in relevant part, that the Agency appoint Petitioner retroactively to either a GS-7 Claims Representative position or a GS-7 Service Representative position with back pay and benefits; conduct EEO training for managers, supervisors, and employees within the Missoula, Montana, cluster; and post a notice informing employees in its Missoula, Montana, cluster of the finding of discrimination. In addition, noting that an agency is not liable for attorney's fees or compensatory damages in ADEA cases, the AJ ordered the Agency to "pay the [Petitioner] all costs to which he may be entitled under federal law in connection with this complaint. 28 U.S.C.� 1920, 29 C.F.R. � 614.501."
On March 7, 2011, the Agency issued a final order fully implementing the AJ's decision. Petitioner appealed the final order to this Commission.
Appeal
On appeal, Petitioner, through his attorney, argued that the AJ erroneously ordered the Agency to appoint Petitioner to "either" the GS-7 Claims Representative or the GS-7 Service Representative position. Stating that the Claims Representative position has promotion potential to the GS-11 level while the Service Representative position goes only to the GS-9 level, Petitioner asserted that the Agency might attempt to minimize its back-pay liability by appointing him to the lower-level position. Petitioner also asserted that the AJ should have awarded him front pay. Although Petitioner initially argued that the AJ erroneously failed to award him compensatory damages and attorney's fees, he subsequently acknowledged that those remedies are not available under the ADEA and withdrew his claim for such relief.
The Agency argued on appeal that the issue regarding which position Petitioner should receive was moot. The Agency stated that, after Petitioner filed the appeal, it offered to appoint Petitioner to a Claims Representative position and to calculate back pay and benefits based on the offer.
Appellate Decision
In a decision dated September 23, 2013, the Commission affirmed in part and modified in part the Agency's final order. EEOC Appeal No. 0720110030 (Nov. 4, 2013). The Commission noted that Petitioner withdrew his claim for compensatory damages and attorney's fees. On that point, the Commission stated, "Compensatory damages and attorney's fees and costs are not available under the ADEA. See Falks v. Dep't of the Treasury, EEOC Request No. 05960250 (Sept. 5, 1996); Tobias v. U.S. Postal Serv., EEOC Request No. 05910376 (May 30, 1991)."
The Commission found that Petitioner was not entitled to front pay. With respect to the offer of employment, we noted that Petitioner expressed a preference for the Claims Representative position and that the Agency apparently offered Petitioner retroactive placement in that position. Nonetheless, to avoid confusion, we modified the ordered remedies to clarify that Petitioner could choose retroactive placement in either the Claims Representative position or the Service Representative position. We reiterated the other remedies that the AJ ordered. The Commission's Order, in relevant part, stated the following:
Within 60 days of the date this decision becomes final, to the extent that it has not already done so, the Agency shall take the following actions:
A. The Agency shall appoint the [Petitioner] to his choice of either the GS-7 Claims Representative position or the GS-7 Service Representative position, effective July 8, 2007, with retroactive pay and benefits to that date. [Petitioner]'s other earnings during the retroactive pay period must be deducted from his retroactive pay. (This includes [Petitioner]'s GS-11 salary through his retirement date of June 1, 2008, his federal pension, and Social Security.) If [Petitioner] qualifies for "retention pay" at a higher level than GS-7, he shall be granted it.
B. The Agency shall pay the [Petitioner] all costs to which he may be entitled under Federal law in connection with this complaint. 28 U.S.C. � 1920, 29 C.F.R. � 614.501. (This involves copying and travel costs.) In ADEA cases, including reprisal based on an ADEA claim, an agency is not liable for attorney's fees or compensatory damages.
* * *
F. The Agency shall conduct EEO training for managers, supervisors, and employees within the Missoula, Montana, cluster to insure that they become aware, and continue to be aware of, their obligations, responsibilities, and rights under EEO, including the rights to work in an environment free from reprisal discrimination and to use the EEO system to remedy perceived violations of EEO laws.
G. The Agency shall post, at all facilities within the authority of the Missoula, Montana, cluster, a notice in accordance with the paragraph below.
The Agency is further directed to submit a report of compliance, as provided in the statement entitled "Implementation of the Commission's Decision." The report shall include supporting documentation of the Agency's calculation of back pay and other benefits due [Petitioner], including evidence that the corrective action has been implemented.
The matter was assigned to a Compliance Officer and, on September 25, 2013, docketed as Compliance No. 0620130892.
Agency's Petition for Clarification
In a November 13, 2013, Petition for Clarification, the Agency sought clarification of Paragraphs A, F, and G of the Commission's Order in EEOC Appeal No. 0120112493. With respect to Paragraph A, the Agency stated that it offered Petitioner retroactive appointment to a Claims Representative position on July 18, 2011, that Petitioner declined the offer on August 1, 2011, that the Agency made two lump-sum back-pay payments to Petitioner, and that the Agency provided Petitioner with a payment to cover the increased tax burden resulting from the lump-sum back-pay award. The Agency noted that, on appeal, Petitioner expressed a preference for the Claims Representative position. In light of the Agency's offer of that position to Petitioner, the Agency asked whether it must offer Petitioner his choice of either the Claims Representative position or the Service Representative position.
In addition, the Agency stated that it provided mandatory EEO training to employees and managers in the Missoula, Montana, cluster and posted a notice informing employees of the finding of discrimination. The Agency submitted copies of sign-in sheets from EEO training that the Agency conducted in June, July, and August 2011 and an affidavit from the EEO Specialist who assisted with the training. The Agency asked whether it must provide the training and post the notice again.
The Agency noted in a footnote that the AJ, when ordering the Agency to pay Petitioner all costs to which he was entitled under law, noted that the Agency was not liable for attorney's fees and compensatory damages under the ADEA. Citing Wallace v. Lew, EEOC Appeal No. 0120130680, the Agency stated that costs were not available to Petitioner because the ADEA was the basis for his relief.
In a November 25, 2013, response to the Agency's Petition for Clarification, Petitioner, through his attorney, argued that the Agency's Petition is moot. Petitioner noted that he was not seeking double damages, acknowledged that he was not entitled to be paid twice, and argued that the Commission's Order clearly instructed the Agency to provide relief to the extent it that had not done so already. Petitioner argued that the Agency was not in compliance with the Commission's Order because it did not submit a compliance report.1
By letters dated January 27, 2014, the Commission notified Petitioner and the Agency that it ceased compliance monitoring and closed enforcement activity on the matter pending a decision on the Agency's Petition for Clarification. On January 29, 2014, the Commission notified the parties that they had twenty calendar days within which to submit comments or briefs on the Petition.
In February 19, 2014, comments, the Agency asked the Commission to confirm that the July 18, 2011, job offer met the Agency's obligations under Paragraph A of the Commission's Order. In a February 20, 2014, submission, Petitioner asserted that the Agency was not in compliance with the Commission's Order because it did not submit a compliance report, refused to issue a Standard Form 50 (SF-50) Notice of Personnel Action to Petitioner, failed to deduct contributions to the Civil Service Retirement System (CSRS) and Social Security from Petitioner's back-pay award, and provided an inadequate explanation of the back-pay calculation.2
Compliance Report
On March 28, 2014, the Agency submitted a compliance report describing the Agency's efforts to implement the AJ's order. In its cover letter, the Agency noted that it had filed a Petition for Clarification asking whether the Agency must re-offer a position to Petitioner. The Agency asserted that it "also requested clarification on whether [the Agency] must provide to the [Petitioner] the reasonable costs associated with his complaint, since costs are not available in Age Discrimination in Employment Act cases."
The compliance report included copies of sign-in sheets from EEO training that the Agency conducted in June, July, and August 2011. The report also included a copy of a notice, posted from March 11 to June 15, 2011, informing employees of the finding of discrimination. In addition, the Agency submitted copies of its July 18, 2011, offer of a Claims Representative position and Petitioner's August 1, 2011, declination of the offer. Attached to the job offer was a "Pay Determination" explanation that described what Petitioner's grade, step, and salary increase would have been on the following dates: July 8, 2007; January 6, 2008; July 6, 2008; January 4, 2009; July 5, 2009; October 11, 2009; and January 3, 2010.
Finally, the Agency submitted copies of "screen shots" showing the following payments to Complainant: $181,114.52 on November 28, 2011; $12,897.89 on March 26, 2012; $54,607.00 on October 12, 2012; and $830.20 on April 24, 2013. The Agency stated that the amounts represented payments for back pay from July 8, 2007, to August 13, 2011; accrued annual leave from July 8, 2007, to August 13, 2011; compensation for the tax consequences of the lump-sum back-pay payment; and payment for a Medicare Part B payment.
Petitioner's Petition for Enforcement
On April 24, 2014, Petitioner filed a "Renewed Petition for Enforcement, Motion for Sanctions, and Request for Order to Show Cause." Petitioner argued that the compliance report did not provide sufficient documentation because it failed to include a detailed explanation of its calculations for back pay and benefits and that the Agency failed to produce SF-50 documents related to the implementation of the Commission's Order. Petitioner also argued that the Agency's calculation of back pay and benefits did not comport with 5 C.F.R. � 550.805. He stated, for example, that the Agency did not deduct payments for employee contributions to CSRS, did not deduct payments for Social Security even though it deducted payments for Medicare, did not produce documentation showing that it returned the CSRS offset (deducted from the back-pay award) to the CSRS system, and did not explain whether the retirement-annuity deduction was reduced by insurance premiums. In addition, Petitioner argued that the Agency's actions failed to comply with Office of Personnel Management (OPM) guidance and the Social Security Administration's Program Operations Manual System (POMS). Petitioner further argued that the remedy provided by the Agency did not constitute "make whole" relief because it did not include service credit and contributions to his retirement accounts. He asserted that the Agency failed to provide him with a detailed explanation of its decision not to provide him with retirement credit for the back-pay period.
In addition, citing 29 C.F.R. � 1614.109(f)(3), Petitioner asked the Commission to sanction the Agency for its alleged failure to comply with the Commission's Order. Petitioner requested monetary sanctions in the form of attorney's fees and payment of the employee's contributions to CSRS and Social Security. Petitioner stated that he used his back-pay lump-sum payment for attorney's fees and his family's living expenses, that he would need to make premature withdrawals from his retirement accounts to cover the CSRS and Social Security contributions, and that doing so would adversely affect his retirement resources. He asked the Commission to order the Agency to show cause why the Commission should not impose sanctions.
In response, the Agency argued that it calculated Petitioner's back pay correctly and that it explained the calculations to him. The Agency stated that it "did provide [Petitioner] 'retirement contributions,' which are the monies the agency would have paid to his retirement funds, and deducted from his pay." The Agency argued that it could not provide an SF-50 to Petitioner because he declined the job offer and remained in retirement. According to the Agency, OPM Guidance states that an agency should not process a personnel action when an individual receives a monetary award but there is no change in his or her employment status. The Agency asserted that, because Petitioner declined the job offer, "there was no change in his status as a retired non-employee" and that the AJ's award therefore became "one for payment of damages, not for a change in appointment status." In addition, the Agency argued that it lacked authority to award Petitioner service credit. Further, citing Barry v. U.S. Postal Service, EEOC Petition No. 04980034 (April 3, 2000) (in decision ordering agency to comply with the terms of a settlement agreement providing for retroactive seniority, Commission noted that petitioner authorized OPM to deduct monies he owed for contributions to retirement system), the Agency asserted that Petitioner should direct his request for increased service credit to OPM. The Agency also asserted that, because Petitioner remained in retirement and "was never an agency employee," the Agency could not provide him with Social Security credits. Finally, the Agency argued that Petitioner's request for sanctions was inappropriate because "a legitimate disagreement of a matter of first impression" did not constitute a failure to comply with the AJ's order.
Other Correspondence
The parties engaged in extensive correspondence during the pendency of the appeal and the instant petitions and submitted copies of several letters with their petitions. In a November 29, 2011, letter to Petitioner, the Agency described the calculations related to the first lump-sum payment to Petitioner. The description identified amounts paid for regular pay from July 8, 2007, through August 13, 2011; overtime pay; interest through December 5, 2011; and Thrift Savings Plan (TSP) earnings. It also identified amounts deducted for the following: outside earnings from petitioner's prior federal employment, Social Security benefits received, gross retirement received from OPM, lump-sum leave payment, and Medicare tax.
In a March 6, 2012, declaration, which the Agency stated that it provided to Petitioner, a Supervisory Human Resources Specialist (SHRS) at the Agency explained the lump-sum payment calculations. The SHRS stated that she requested a back-pay calculation from the Department of Interior, which is the Agency's payroll provider. She described the regular pay amounts for six groups of pay periods corresponding to incremental salary increases. She also described the overtime pay amount, based on the average overtime worked by similarly situated employees, for Fiscal Years 2007 through 2011. In addition, the SHRS explained how the deductions for Social Security benefits, earnings from the Air Force, retirement annuity, and lump-sum leave payments were calculated. She stated that the deduction for Medicare tax "represents the amount of Medicare tax calculated based on 1.45% of the equivalent of the gross back pay less outside earnings."
ANALYSIS AND FINDINGS
The Commission's regulations provide that a complainant may petition the Commission for enforcement of an appellate decision. 29 C.F.R. � 1614.503(a). Further, the Office of Federal Operations may, on its own motion or in response to a petition for enforcement or in connection with a timely request for reconsideration, issue a clarification of a prior decision. � 1614.503(c). A clarification cannot change the result of a prior decision or enlarge or diminish the relief ordered, but may further explain the meaning and intent of the prior decision. Id.
Request for Sanctions and Show Cause Order
Petitioner has asked the Commission to sanction the Agency pursuant to 29 C.F.R. � 1614.109(f)(3), which authorizes administrative judges to take appropriate actions when a party fails to respond to a judge's order or request. That regulation pertains to matters at the hearing stage of the complaint process, not to issues regarding compliance with a Commission order in an appellate decision. Although Commission regulation 29 C.F.R. � 1614.503(e) authorizes the Commission to issue a notice to the head of an agency to show cause why there is noncompliance, the Commission declines to do so here. Petitioner's request for sanctions and a show cause order is denied.
Paragraph A: Appointment to GS-7 Position
It is undisputed that Petitioner preferred the Claims Representative position, that the Agency offered him retroactive appointment to that position on July 18, 2011, and that Petitioner declined the offer. The Agency need not offer Petitioner his choice of the Claims Representative or the Service Representative position.
Paragraph A: Back Pay and Benefits
When discrimination is found, the agency must provide the petitioner with a remedy that constitutes full, make-whole relief to restore the petitioner to the position he or she would have occupied absent the unlawful discrimination. Franks v. Bowman Transp. Co., 424 U.S. 747, 764 (1976); see also Albemarle Paper Co. v. Moody, 422 U.S. 405, 418 (1975); 29 C.F.R. � 1614.501(a). The purpose of a back pay award is to restore to the petitioner the income he or she would have otherwise earned but for the discrimination. See Albemarle Paper Co., 442 U.S. at 418-19. The Commission construes "benefits" broadly to include, inter alia, annual leave, sick leave, health insurance, overtime and premium pay, night differentials, and retirement contributions. See Vereb v. Dep't of Justice, EEOC Petition No. 04980008 (Feb. 29, 1999).
In this case, absent the unlawful discrimination, Petitioner would have been employed by the Agency on July 8, 2007. The Agency, therefore, must provide Petitioner with all of the pay and benefits that Petitioner would have received from July 8, 2007, until the date that he declined the Agency's offer of employment. If Petitioner had been employed during that period, he would have accrued sick leave, and he and the Agency would have made contributions to his CSRS and Social Security accounts. Accordingly, to place Petitioner in the position that he would have occupied absent the unlawful discrimination, the Agency must ensure that Petitioner's personnel record reflects the sick leave that he would have accrued, must calculate and contribute the Agency's share to Petitioner's CSRS and Social Security accounts, and must calculate and deduct retirement contributions and Social Security taxes from Petitioner's back pay.
We note that Petitioner has asserted that making CSRS and Social Security contributions would adversely affect his retirement resources. Although the Agency erroneously failed to deduct those contributions from his back-pay payment, Petitioner remains responsible for his share of the contributions.
The Agency, too, is responsible for its share of the contributions to Petitioner's CSRS and Social Security accounts. The Agency has asserted that it provided "retirement contributions" to Petitioner, but it is not clear from the record whether the lump-sum payment to Petitioner included the Agency's share of the contributions to Petitioner's accounts and, if so, the amount that the Agency provided. If the lump-sum payment included money that the Agency paid Petitioner in lieu of making retirement contributions, then Petitioner should refund the money to the Agency and the Agency should contribute the money to Petitioner's retirement accounts. If the lump-sum payment did not include money for the Agency's share of retirement contributions, then the Agency must make the appropriate contributions to Petitioner's CSRS and Social Security accounts.
We further note that the Agency has argued that, because Petitioner declined the Agency's job offer on August 1, 2011, he was never an Agency employee and there was no change in his employment status. But for the Agency's discriminatory actions, however, Petitioner would have become an Agency employee on July 8, 2007. Therefore, for purposes of make-whole relief, there is a change in Petitioner's employment status: Petitioner is deemed to have been employed by the Agency from July 8, 2007, until the date that he declined the Agency's post-discrimination offer of employment. Thus, contrary to the Agency's assertion, the Commission's and AJ's orders in fact called for a "change in [Petitioner's] appointment status, position, or pay" (quoting OPM General Instructions for Processing Personnel Actions at 205.b) rather than for the payment of damages.
Finally, the Agency has argued that it lacked authority to award service credit to Petitioner and that Petitioner should direct his request for increased service credit to OPM. The Agency, however, must provide accurate information to OPM to enable OPM to recalculate Petitioner's service credit and retirement benefits. The Agency must notify OPM and the Social Security Administration that Petitioner is deemed to have been employed by the Agency from July 8, 2007, until the date that he declined the Agency's post-discrimination offer of employment. See Johnson v. U.S. Postal Serv., EEOC Petition No. 0420120009 (Sept. 13, 2013) (addressing petitioner's concerns about agency's duty to inform OPM of retroactive changes to salary); Smith v. Dep't of Veterans Affairs, EEOC Petition No. 0420120003 (Mar. 21, 2013) (directing agency to notify OPM of petitioner's retroactive pay increase so OPM could recalculate petitioner's pension benefits).
Because the Agency has not provided Petitioner with all of the pay and benefits that Petitioner would have received from July 8, 2007, until the date that he declined the Agency's offer of employment, we remand the matter for compliance with the Commission's Order. We will direct the Agency to ensure that Petitioner's personnel record reflects the sick leave that he would have accrued, to calculate and contribute the Agency's share to Petitioner's CSRS and Social Security accounts, to calculate and deduct Petitioner's share of retirement contributions and Social Security taxes from Petitioner's back pay, and to notify OPM and the Social Security Administration that Petitioner is deemed to have been employed by the Agency from July 8, 2007, until the date that he declined the Agency's post-discrimination offer of employment.3
Paragraph B: Costs
Paragraph B directed the Agency to pay the costs to which Petitioner was entitled under federal law and noted that attorney's fees and compensatory damages are not available under the ADEA. Although the Agency's Petition for Clarification did not seek clarification of Paragraph B, the Agency mistakenly asserted in its report of compliance that the Petition asked whether the Agency must pay costs to the Petitioner. Like attorney's fees and compensatory damages, costs are not available in the administrative process for retaliation claims arising solely out of prior EEO activity under the ADEA. See Steinbach v. Dep't of the Army, EEOC Request No. 05931045 (July 21, 1994); Tobias v. U.S. Postal Serv., EEOC Request No. 05910376 (May 30, 1991). Accordingly, the Agency need not pay costs to Petitioner.
Paragraphs F and G: Training and Notice Posting
The record establishes that the Agency has conducted EEO training and has posted a notice informing employees of the finding of discrimination. The Commission's appellate decision ordered the Agency to take actions "to the extent that it has not already done so." Because the Agency has already conducted the training and posted the notice, it need not take these actions again.
Report of Compliance
Petitioner argued that the March 28, 2018, report of compliance was inadequate. The Commission, however, notified the parties on January 27, 2014, that it ceased compliance monitoring and closed enforcement activity pending a decision on the Agency's Petition for Clarification. Because the Commission suspended compliance on January 27, 2014, and is ordering the Agency to submit a compliance report in accordance with this decision, we need not address the adequacy of the Agency's March 28, 2014, submission. The Agency will be required to submit a final report of compliance following its receipt and implementation of this decision.
We remind the Agency that its report of compliance should describe all of the corrective actions that the Agency has taken and should include a detailed copy of all of its calculations regarding back pay and benefits. Details such as the information that the Agency provided in its November 29, 2013, letter to Petitioner and the March 6, 2012, SHRS declaration should be included in the compliance report. Further, the report should include supporting documentation regarding the Agency's calculations of the sick leave that Petitioner would have accrued absent the discrimination, of the contributions that the Agency should have made to Petitioner's CSRS and Social Security accounts, and of the retirement contributions and Social Security taxes that Petitioner should have paid and the Agency should have deducted from Petitioner's back pay. The report also should include copies of the Agency's correspondence with OPM and the Social Security Administration regarding Petitioner's service credit and retirement benefits. In addition, the report should address Petitioner's request for an explanation of whether the retirement-annuity deduction was reduced by insurance premiums.
In summary, we clarify that the Agency need not offer Petitioner his choice of the Claims Representative or the Service Representative position, pay costs to Petitioner, or again provide EEO training and post a notice of discrimination. We find that the Agency has not complied with Paragraph A of Commission's Order in EEOC Appeal No. 0120112493 because it has not provided Complainant with all of the benefits that he would have received absent the unlawful discrimination. Accordingly, we remand the matter to the Agency and direct the Agency to comply with the order below. To clarify that we are not ordering the Agency to provide relief that it has already provided, the Order below directs the Agency to take steps "to the extent that it has not already done so." The Agency need not provide a specific remedy twice.
CONCLUSION
Accordingly, the Commission GRANTS the Agency's Petition for Clarification and Petitioner's Petition for Enforcement. We find that the Agency has not complied with our order in EEOC Appeal No. 0120112493 and that the Agency is directed to do so in accordance with the ORDER below.
ORDER
To the extent that it has not already done so, the Agency is ORDERED to take the following actions:
1. The Agency shall appoint Petitioner to the GS-7 Claims Representative position, effective July 8, 2007, with retroactive pay and benefits to the date that Petitioner declined the offer of the position. The Agency shall provide Petitioner and the Commission with a full explanation of its calculations of back pay and all benefits. This explanation must include detailed documentation regarding the Agency's back-pay calculations, including a clear and concise "plain language" statement of the methods of calculations used; evidence of the actual calculations applying said methods; and clear calculations of the interest and benefits paid to Petitioner.
2. The Agency shall calculate the sick leave that Petitioner would have accrued from July 8, 2007, to the date that Petitioner declined the offer of the Claims Representative position and shall ensure that Petitioner's personnel record reflects credit for the accrued sick leave. The Agency shall officially notify OPM of the adjustments to Petitioner's sick-leave balance.
3. The Agency shall calculate and contribute its share of retirement contributions to Petitioner's CSRS and Social Security accounts for the period from July 8, 2007, to the date that Petitioner declined the offer of the Claims Representative position.
4. The Agency shall calculate Petitioner's Social Security taxes and Petitioner's share of retirement contributions to his CSRS account for the period from July 8, 2007, to the date that Petitioner declined the offer of the Claims Representative position. The Agency shall deduct the taxes and contributions from Petitioner's back pay and shall contribute the monies to Petitioner's accounts.
5. The Agency shall officially notify OPM and the Social Security Administration of the Petitioner's appointment to the GS-7 Claims Representative position, for the period from July 8, 2007, to the date that Petitioner declined the offer of the position, for the purposes of calculating Petitioner's service credit and retirement benefits.
The Agency is directed to submit a report of compliance, as provided in the statement entitled "Implementation of the Commission's Decision." The report shall include supporting documentation of the Agency's calculation of back pay and other benefits due Petitioner, including evidence that the corrective action has been implemented. The Agency shall send a copy of the report and all of its enclosures to Petitioner.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0610)
Compliance with the Commission's corrective action is mandatory. The Agency shall submit its compliance report within thirty (30) calendar days of the completion of all ordered corrective action. The report shall be submitted to the Compliance Officer, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. The Agency's report must contain supporting documentation, and the Agency must send a copy of all submissions to the complainant. If the Agency does not comply with the Commission's order, the complainant may petition the Commission for enforcement of the order. 29 C.F.R. � 1614.503(a). The complainant also has the right to file a civil action to enforce compliance with the Commission's order prior to or following an administrative petition for enforcement. See 29 C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g). Alternatively, the complainant has the right to file a civil action on the underlying complaint in accordance with the paragraph below entitled "Right to File a Civil Action." 29 C.F.R. �� 1614.407 and 1614.408. A civil action for enforcement or a civil action on the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999). If the complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. � 1614.409.
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (R0610)
This is a decision requiring the Agency to continue its administrative processing of your complaint. However, if you wish to file a civil action, you have the right to file such action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. In the alternative, you may file a civil action after one hundred and eighty (180) calendar days of the date you filed your complaint with the Agency, or filed your appeal with the Commission. 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. Filing a civil action will terminate the administrative processing of your complaint.
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
July 3, 2014
Date
1 In a December 4, 2013, response to an e-mail communication from Petitioner, the Commission's Compliance Officer explained that the compliance report was not due until January 27, 2014.
2 Petitioner also addressed matters pertaining to an order of the Merit Systems Protection Board (MSPB). Those matters are not at issue here.
3 We note that Petitioner retired from federal employment on June 1, 2008. Although not clear from the record, it is likely that Petitioner and his former federal employer contributed their respective shares to Petitioner's retirement and Social Security accounts for the period July 8, 2007, to June 1, 2008. To the extent that is the case, we do not direct either party to re-contribute to the accounts.
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0420140005
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0420140005