01A23472
03-21-2003
Wally M. DeRose, Complainant, v. Colin L. Powell, Secretary, Department of State, Agency.
Wally M. DeRose v. Department of State
01A23472
03-21-03
.
Wally M. DeRose,
Complainant,
v.
Colin L. Powell,
Secretary,
Department of State,
Agency.
Appeal No. 01A23472
Agency No. 98-20
DECISION
INTRODUCTION
Complainant filed an appeal with this Commission concerning his contention
that the agency has violated the terms of its January 30, 2001 final
decision, which was amended by the agency on May 22, 2001. Pursuant to
29 C.F.R. � 1614.405, the Commission accepts the complainant's appeal
in the above-entitled matter.
ISSUE PRESENTED
The issue on appeal is whether the agency properly decided that it had
complied with its January 30, 2001 final decision, as amended by its
supplemental decision on May 22, 2001.
BACKGROUND
In its January 30, 2001 final decision, the agency found that complainant
was discriminated against on the bases of age (59) and in reprisal for
engaging in prior EEO protected activity<1> when he was denied employment
(reappointment) as a Foreign Service Diplomatic Security Officer.
The following remedies where ordered:
The Department will expeditiously offer complainant reappointment to
a Foreign Service Diplomatic Security Agent FP-4 position, with back
pay from February 1992. Should the complainant decline that offer,
his entitlement to back pay and related benefits shall terminate as of
the date of his declination.
The Department will restore any compensatory and sick leave accrued
and credited to complainant as of the date of his resignation.
The Department will fully restore any retirement benefits that would
have accrued from 1992 to the date that complainant's reappointment
becomes effective.
The Department will expunge from complainant's personnel records
any references or documents related to the Stipulation of Settlement
Agreement executed on June 6, 1994.
The Department will allow the complainant to inspect his personnel file
and review all performance evaluations contained therein.
The Department will pay reasonable and documented Attorney's fees
encountered by complainant in this matter.
In a footnote, the agency indicated that:
It is theoretically possible that complainant might not now be eligible
for reappointment on security, suitability or fitness grounds. If the
Department makes any such determination, it shall be subject to the
strictest scrutiny. However, should the determination be meritorious,
complainant's entitlement to back pay and related benefits would be
terminated as of the date of such a determination.
On May 22, 2001, the agency issued a supplemental decision that withdrew
Remedial Measures (2) and (6). Remedial Measure (2) was withdrawn
because it was resolved pursuant to an earlier settlement agreement.
Remedial Measure (6) was withdrawn because attorney's fees are not
available for violations of the ADEA. Complainant did not file an appeal
on either of the agency's decisions.
On May 16, 2002, complainant, through his attorney, informed the
Commission that the agency had failed to comply with certain aspects of
its final decision. At the outset, he indicated that it was not until
May 1, 2002, that the agency made a �definitive offer to reappoint� him.
He also maintained that:
1) the agency refused to calculate as a component of his back pay award
a form of premium pay known as Administratively Uncontrollable Overtime
(AUO);
2) the agency's offer to reappoint him was conditioned upon his agreeing
to attend a basic training session at the Federal Law Enforcement Training
Center (FLETC) in Brunswick, Georgia, which was a unilaterally imposed
condition by the agency;
3) the agency failed to appoint complainant to a FP-3 position, a position
to which, but for the agency's delay in implementing the January 30,
2001 final decision, he would have been promoted;
4) the agency failed to include, as a factor in its back pay award,
the increased pay associated with a promotion to FP-3; and
5) the agency refused to acknowledge that complainant, upon accepting
reappointment pursuant to the final agency decision, will be eligible
to retire with a retirement calculation of 1.7% instead of 1.0% under
the Foreign Service retirement system.
The agency maintained that it had complied with its January 30, 2001 final
decision by providing the appropriate relief. Complainant, according
to the agency, is attempting to contest the remedies set forth in the
final decision even though he never filed an appeal.
ANALYSIS AND FINDINGS
The Commission's regulations provide that a complainant may appeal to this
Commission from an agency's failure to comply with its final decision.
29 C.F.R. � 1614.504(a).
At the outset, we note complainant's claim that the agency failed to
expeditiously reappoint him to his FP-4 position. The record contains
a March 29, 2001 internal memorandum that indicates, as early as
February 28, 2001, inquiries were made to, among other things, obtain
complainant's personnel records and to �prepare for his restoration
to the Department's employment rolls.� A June 1, 2001 e-mail message
indicates that complainant and the agency entered into settlement
discussions that would have included complainant's taking retirement in
lieu of reappointment. A June 7, 2001 memorandum discusses complainant's
application for reappointment and the need to update his security and
medical clearance forms. At some point, the efforts to reach a settlement
ended.<2> In a March 29, 2002 memorandum to complainant's attorney, the
agency indicated that it could not reschedule complainant's April 1-2,
2002 medical examination to the week of April 15, 2002. According to
the agency official, complainant was scheduled to attend a Diplomatic
Security class, which was to begin on April 8; therefore, he had to
have his medical examination completed prior to the start of the class.
Complainant was also informed that, if he failed to appear for the
examination, the agency would deem this as a declination of the offer.
Although complainant did not appear for his scheduled medical examination
on April 1-2, the agency rescheduled him for an examination on April
22, 2002, with a Diplomatic Security class starting on May 20, 2002.
On May 1, 2002, the agency sent complainant a letter providing him
with information concerning his upcoming class. He was also provided
a memorandum to the Board of Examiners, which required his signature.
By signing the memorandum, complainant would accept the agency's offer
of employment. On May 15, 2002, the agency sent a follow-up letter
requesting that complainant submit the signed memorandum by May 17th,
because the document was needed to process the paperwork that authorized
his travel for the May 20th class date. On June 6, 2002, the agency
informed complainant that, because he had not accepted its offer of
employment pursuant to the May 15, 2002 letter, it was terminating his
candidacy for reappointment. Complainant was also informed that his
back pay entitlement period would be February 1992 through May 17, 2002.
Based on the record before us, we do not find that there was an
unreasonable delay on the agency's part to reappoint complainant. There
were good faith efforts that complainant participated in, to resolve
this matter without complainant having to enter back on active duty.
We also note the agency's undisputed assertions that complainant's
actions contributed to the delay in processing this matter.
Claim (1)
Complainant maintained that, had he not been discriminated against, he
would have received AUO, which equals 25% of his base pay. According to
complainant, AUO is automatically paid to an employee for unscheduled,
unanticipated overtime and is guaranteed to all employees. The agency,
however, indicated that Special Agents in the Diplomatic Security Service
are not entitled to AUO. Instead, they are authorized to receive Law
Enforcement Eligibility Pay (LEAP). According to the agency, it notified
complainant that his back pay would include LEAP for the dates February
1992 through May 17, 2002. Complainant did not address the agency's
assertion. He also failed to present any evidence that would support
his claim for AOU.
We find that complainant failed to provide objective evidence that he
is entitled to AUO; therefore, we are unable to conclude that the agency
violated the January 30, 2001 final decision provision that complainant
would receive �back pay and related benefits.�
Claim (2)
Complainant argued that the agency �unjustifiably conditioned its
offer to re-employment� on his attending basic training as if he were a
new trainee. Complainant indicated that he already participated in the
training in 1986. Complainant also indicated that there was no dispute
that he was eligible for reappointment based on security, suitability
and fitness grounds. The agency maintained that it has the right to
set mandatory training requirements for its employees, and that all
employees who have been absent for 24 months or longer are required to
undergo FLETC basic training upon their return to duty.
We find that the agency's requirement that complainant attend a training
course, after he returns to duty, is not a violation of the January 30,
2001 final decision. The decision set forth the agency's obligation to
reappoint complainant. It did not preclude complainant being sent to
training after his reappointment. Nor do we find the agency's request
unreasonable, given its policy that all employees absent for 24 months
must undergo the training again.
Claims (3) and (4)
According to complainant, although the agency's final decision called for
his retroactive reinstatement to FP-4, he was entitled to a promotion
to FP-3 level because the agency did not �expeditiously� comply with
the January 30, 2001 decision. Although complainant maintained that
�employees of the agency, as of January 31, 2001, who are similarly
situated to him progressed to the FP-3 position as of the date of this
petition,� he presented no persuasive evidence that (a) he would have
been non-competitively promoted to FP-3 had the agency restored him to
his FP-4 position in January 2001, or shortly thereafter, pursuant to
its final decision, or (b) he would have been non-competitively promoted
to FP-3 had the agency never discriminated against him.
Claim (5)
Complainant maintained that he was entitled to a retroactive adjustment
to his retirement benefits. According to complainant, the agency used
the wrong formula to calculate the amount of his retirement benefits.
The agency, on the other hand, indicated that complainant was mistaken.
The agency argued that �complainant was not eligible to participate
under [the system he maintains should be applied] because his entry on
duty with the agency occurred in November 1985, following the change in
retirement systems for new hires . . . .� Complainant did not address
the agency's assertion. He also failed to present any evidence that
would support his claim for an adjustment in his retirement benefits.
We find that complainant failed to provide objective evidence that he
is entitled to an adjustment in his retirement benefits; therefore,
we are unable to conclude that the agency violated the January 30, 2001
final decision provision that complainant should receive �back pay and
related benefits.�
CONCLUSION
Based upon a review of the record and for the foregoing reasons, the
Commission finds that the complainant has not established that the agency
has not complied with its January 30, 2001 decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
The Commission may, in its discretion, reconsider the decision in this
case if the complainant or the agency submits a written request containing
arguments or evidence which tend to establish 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.
Requests to reconsider, with supporting statement or brief, must be filed
with the Office of Federal Operations (OFO) within thirty (30) calendar
days of receipt of this decision or within twenty (20) calendar days of
receipt of another party's timely request for reconsideration. See 29
C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for
29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999). All requests
and arguments must be submitted to the Director, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. In the absence of a legible postmark, the
request to reconsider shall be deemed timely filed if it is received by
mail within five days of the expiration of the applicable filing period.
See 29 C.F.R. � 1614.604. The request or opposition must also include
proof of service on the other party.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely, unless extenuating circumstances
prevented the timely filing of the request. Any supporting documentation
must be submitted with your request for reconsideration. The Commission
will consider requests for reconsideration filed after the deadline only
in very limited circumstances. See 29 C.F.R. � 1614.604(c).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S0900)
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 (Z1199)
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 that the Court appoint
an attorney to represent you and that the Court 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 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
___03-21-03_______________
Date
1 Complainant's prior EEO activity raised a claim that the agency violated
the Age Discrimination in Employment Act.
2 In its brief, the agency maintains that between November - December
2001, complainant was advised that settlement did not seem possible, and
he should prepare himself for returning to the agency in January 2002.
The record does not contain documentation that supports this assertion
by the agency.