0520100487
09-23-2010
John Kennedy, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
John Kennedy,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Request No. 0520100487
Appeal No. 0120101266
Agency No. 2004-0688-2007101424
DENIAL
The Agency timely requested reconsideration of the decision in John Kennedy v. Department of Veterans Affairs, EEOC Appeal No. 0120101266 (June 9, 2010). 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(b).
On February 11, 2009, the parties entered into a settlement agreement providing, in pertinent part, that:
The Agency agrees to retroactively promote the Complainant to the GS-12 [level] with appropriate step increases retroactive to January 31, 2005. Complainant agrees to waive back pay associated with this retroactive promotion. The Agency agrees to pay the Agency's and the Complainant's retirement contributions associated with this retroactive promotion.
The previous decision referred to the above as provision 1 of the settlement agreement. It recounted that Complainant alleged that the Agency breached the settlement agreement by not completing the processing of his retroactive promotion for retirement purposes, resulting in his not yet receiving adjusted retirement pay and retroactive retirement pay associated with the retroactive promotion. It found that the record was insufficient to determine if a breach occurred. In so doing, it pointed to email correspondence by an Agency Regional Counsel dated November 24, 2009, where she acknowledged that Complainant's retirement annuity will be adjusted and another check sent to him within a month for that amount. The Commission found that there were no affidavits from the Regional Counsel or any other management officials indicating that they purportedly fulfilled the obligation under the settlement agreement concerning processing the retroactive promotion for the purposes of Complainant's adjusted retirement pay.
The Commission ordered the Agency to supplement the record with evidence clearly showing that it has completed processing Complainant's retroactive promotion for retirement purposes in compliance with the settlement agreement. It ordered that the supplementation shall include documentation that Complainant has received retroactive and adjusted retirement pay reflecting the retroactive promotion.
In its request for reconsideration, the Agency argues that the previous decision made a clear error of fact. The Agency contends that Tab 9j of the investigative shows that from August 21, 2005 through August 19, 2007, Complainant's Federal Employee Retirement System calculations, including a final SF-50 [Notification of Personnel Action] at $67,644, were all cancelled, and instead, the Agency processed the SF-50s showing the promotion, step increases, final SF-50 at a salary of $73,445, and the record contains a Notice of Correction of Individual Retirement Record [dated December 3, 2009 to the Office of Personnel Management (OPM)]. In opposition to the request, Complainant argues that the SF-50s in the record do not appear to be final since none contain approval dates. He points to a record email by the Regional Counsel record dated October 27, 2009, stating that that the SF-50s need immediate correction. Complainant argues that there is no evidence in the record that the Notice of Correction of Individual Retirement Record, was actually submitted to OPM. He points to a record email by the Regional Counsel dated December 9, 2009, stating that she has the calculations but not the SF-50s used to make them, and "no copy of the check payment --- whom sent to OPM." Complainant argues that appropriate evidence of compliance might be SF-50s with approval dates, a declaration from the individual who submitted the Notice of Correction of Individual Retirement Record to OPM, or confirmation from OPM that such Notice was received.
After reconsidering the previous decision and the entire record, the Commission finds that the Agency's 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. As the above description of the record shows, the finding in the previous decision that the record was insufficient to determine if a breach occurred was not clearly erroneous. The decision in EEOC Appeal No. 0120101266 remains the Commission's decision. There is no further right of administrative appeal on the decision of the Commission on this request. The Agency shall comply with the Order as set forth below.
ORDER
The Agency is ORDERED to take the following action:
The Agency shall supplement the record with evidence clearly showing that it has completed the processing of Complainant's retroactive promotion for retirement purposes in compliance with provision 1 of the settlement agreement. The supplementation of the record shall include documentation that Complainant has received retroactive and adjusted retirement pay reflecting the retroactive promotion. Within thirty (30) calendar days of the date this decision becomes final, the Agency shall issue a new decision concerning whether it breached this portion of provision 1 of the settlement agreement.
A copy of the Agency' s new decision must be sent to the Compliance Officer as referenced herein.
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 (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
September 23, 2010
__________________
Date
2
0520100487
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0520100487