0420080019
10-15-2008
Arthur F. Paras, Petitioner, v. Michael J. Astrue, Commissioner, Social Security Administration, Agency.
Arthur F. Paras,
Petitioner,
v.
Michael J. Astrue,
Commissioner,
Social Security Administration,
Agency.
Petition No. 0420080019
Appeal No. 0720060049
Agency No. 04-0114-SSA
Hearing No. 170-2005-00057X
DECISION ON A PETITION FOR ENFORCEMENT
The Equal Employment Opportunity Commission (EEOC or Commission) docketed
a petition to enforce the Order set forth in Arthur F. Paras v. Social
Security Administration, EEOC Appeal No. 0720060049 (November 6, 2006).
Petitioner alleged that the agency failed to fully comply with the
Commission's Order requiring the agency to promote complainant to the
position of Social Insurance Specialist, (Claims Authorizer), GS-105-7,
SSA Mid-Atlantic Program Service Center, or a substantially equivalent
position, retroactive to September 21, 2003, and provide complainant
with appropriate back pay.
Petitioner filed a complaint in which he alleged that the agency
discriminated against him on the basis of race in violation of Title
VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. �
2000e et seq. After a hearing, the EEOC Administrative Judge (AJ) found
that petitioner had been subjected to discrimination based on his race,
when in September 2003, he was not selected for the position of Social
Insurance Specialist, (Claims Authorizer), GS-105-7, SSA Mid-Atlantic
Program Service Center. The AJ ordered the agency to provide complainant
with several remedies, including compensatory damages, promotion to the
subject position; appropriate back pay and to consider discipline for
the involved management officials. The agency issued a final decision,
rejecting the AJ's decision and, simultaneously appealed the decision
to the Commission. Complainant filed an appeal as well, regarding the
AJ's order for compensatory damages. In EEOC Appeal No. 0720060049,
the Commission found that the AJ's decision was supported by substantial
evidence in the record. The Commission ordered the agency to take the
actions ordered by the AJ and to pay attorney's fees for fees incurred
in defense of the agency's appeal.
By Petition dated August 10, 2007, petitioner requested enforcement of the
Order at issue. Petitioner contends that the agency failed to promote
complainant into the position of Social Insurance Specialist (Claims
Authorizer), or a substantially equivalent position. Additionally,
petitioner claims that the agency has not fully complied with the
Commission's order to award petitioner appropriate "back pay, with
interest and other benefits due . . . for the period beginning September
21, 2003, to the time [petitioner] is placed into the Claims Authorizer
position, pursuant to 29 C.F.R. �1614.501." Petitioner further requests
an additional award of attorney's fees and costs incurred in securing
the agency's compliance with the Commission's decision in EEOC Appeal
No. 0720060049.
In his declaration dated August 7, 2007, petitioner states that after
the AJ issued her decision, the agency failed to contact him to place
him in the Claims Authorizer position and instead the agency filed its
appeal of the AJ's decision. Petitioner states that he retired from his
previous position (Contact Representative) on August 31, 2006, because
he was required to do so in order to receive an early-out retirement
incentive. At that time, petitioner explains, the agency could not
guarantee that it would offer early-out retirement in 2007 or later.
Petitioner further explains that he was exhausted after being a GS-8 Step
10 Contact Representative for more than 10 years, but he would not have
retired had he been placed in the Claims Authorizer position, GS-0105-11.
Petitioner states that he has (through counsel) contacted the agency
on several occasions, notifying the agency that he is waiting for the
agency to offer him the Claims Authorizer position and that he would
take the position when offered.
With respect to the Commission's Order for back pay, petitioner states
that he has not received any increase except for a cost of living increase
(January 2007) in his monthly retirement annuity payments since he first
began receiving payment in September 2006. Petitioner states that he
has not received any separate sum reflecting a retroactive increase in
his annuity payments.
ANALYSIS and FINDINGS
EEOC Regulation 29 C.F.R. � 1614.503(a) provides that a petitioner may
petition the Commission for enforcement of a decision issued under the
Commission's appellate jurisdiction.
As a preliminary matter, we note that by letter dated February 7, 2007,
petitioner (through counsel) acknowledges receipt of an award of $5,000
in compensatory damages and also acknowledges receipt of an award of
attorney's fees as agreed for services rendered in connection with EEOC
Appeal No. 0720060049. We therefore confine our decision herein to the
matter of petitioner's promotion and back pay award
In the instant case, we find the record sufficient to determine that the
agency has fully complied with our Order in EEOC Appeal No. 0720060049.
The record reveals a memorandum from the agency regarding its compliance,
dated July 9, 2007, which explains, that petitioner retired from the
agency on August 31, 2006, and that the agency promoted him to the
position of Claims Authorizer (CA) as ordered, retroactive to September
21, 2003, through the date of his retirement. The agency further states
that it has assumed that petitioner would have progressed through the
career ladder of the CA position. The memorandum refers to "enclosed
pay computations and summary sheet" as well as to agency standard
personnel forms (SF-50) that the agency states document the relief
provided to complainant with respect to his promotion and back pay award.
Attachments to the agency's memorandum indicate that the agency calculated
complainant's gross back pay award to be $14,957.66 (net back pay award
of $11,125.74). We note that a series of standard forms 50 (SF-50) appear
attached to the memorandum indicating that complainant was retroactively
promoted to the CA position and that he received the usual increases
associated with that position through his retirement in August 2006.
We find complainant does not challenge the agency's calculation of the
back pay award and has not shown that it was improperly calculated.
We conclude that complainant has received the back pay ordered and the
agency accomplished the steps necessary for the appropriate adjustments
to his retirement annuity to be made by the Office of Personnel Management
(OPM).
With respect to complainant's contention that the agency should have
offered him the CA position after his retirement in August 2006, we find
that after complainant retired, the agency was not required to offer
complainant the CA position. We find that complainant voluntarily retired
when he chose to accept the agency's offer of early retirement in August
2006, and that he did so with the implied intention that he would not
be returning to work. See Hulvey v. Department of Labor, EEOC Appeal
No. 0720070059 (February 7, 2008), request for reconsideration denied,
EEOC Request No. 0520080384 (April 17, 2008).
For the foregoing reasons, the Commission DENIES the petition for
enforcement. Specifically, we find that the agency has complied with
the Commission's Order with respect to the promotion of complainant to
the position of Claims Authorizer position and with respect to the award
of back pay.
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (P0408)
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 (Z0408)
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
October 15, 2008
__________________
Date
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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