0320160057
11-04-2016
Cleveland C.,1 Petitioner, v. Beth F. Cobert, Acting Director, Office of Personnel Management, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Cleveland C.,1
Petitioner,
v.
Beth F. Cobert,
Acting Director,
Office of Personnel Management,
Agency.
Petition No. 0320160057
MSPB No. SF0845150738I1
DECISION
On August 11, 2016, Petitioner filed a timely petition with the Equal Employment Opportunity Commission asking for review of a Final Order issued by the Merit Systems Protection Board (MSPB) concerning his claim of discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. For the following reasons, we CONCUR with the MSPB's finding that Petitioner did not establish that he was discriminated against.
BACKGROUND
Petitioner was a FERS disability retirement annuitant. By letter dated September 19, 2012, the Agency informed Petitioner that his FERS annuity would be reduced if he were awarded Social Security Administration (SSA) benefits, and that he would be required to repay any resulting FERS annuity overpayment. In May 2014, Petitioner was awarded SSA disability benefits, retroactive to October 1, 2012. In late May or early June, Petitioner mailed OPM a form included with the September 19, 2012 letter notifying them that he had been awarded SSA disability benefits. Petitioner followed up in writing and via telephone several times over a period of approximately five months without receiving any response from the Agency.
Approximately nine months after Petitioner mailed the form to the Agency, by letter dated February 28, 2015, the Agency informed Petitioner that his FERS annuity payment would be reduced based on his entitlement to SSA disability benefits, and that he had received a FERS annuity overpayment of $33,195.00.
Petitioner submitted a request for reconsideration of the overpayment notice, and approximately four months later, the Agency issued a reconsideration decision affirming its initial decision finding that Petitioner was not entitled to a waiver of the overpayment, but an adjustment in the collection schedule. Petitioner filed an appeal with the MSPB challenging the reconsideration decision. He argued that the Agency had miscalculated the overpayment and that the overpayment should be waived. Additionally, Petitioner raised a number of affirmative defenses including discrimination based on age and disability.
A hearing was held and thereafter an MSPB Administrative Judge (AJ) issued an initial decision finding that the Agency proved by a preponderance of the evidence the existence and amount of the overpayment. The AJ found that Petitioner was not entitled to a waiver of the overpayment, and he denied each of Petitioner's affirmative defenses ultimately finding no discrimination. In finding no discrimination, the AJ relied upon the MSPB's decision in Savage v. Department of the Army, 122 M.S.P.R. 612 (2015). In Savage, the MSPB, among other things, determined that the analytical framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), was not applicable to its proceedings. Savage, 122 M.S.P.R. at 637. In rejecting the McDonnell Douglas framework, the MSPB maintained that the MSPB's authority to adjudicate and remedy alleged violations of 42 U.S.C. � 2000e-16 is a matter of civil service law. Id.
Petitioner sought review by the full Board. The Board denied the petition and affirmed the MSPB AJ's initial decision finding that after full consideration of the record and all Petitioner's affirmative defenses, there was no basis to disturb the initial decision.
Arguments on Petition for Review
In the instant petition, Petitioner argues that the Board erred when it denied the affirmative defenses Petitioner raised on appeal. Petitioner contends that the facts in the instant matter clearly show that he was subjected to discrimination on the basis of disability and age. Petitioner contends that the Agency sends notices lacking in legal sufficiency. Additionally, Petitioner contends that these notices are only sent to individuals with disabilities and who are over the age of 40. Petitioner is seeking: (1) an injunction in all cases regarding overpayment collection by the Agency; (2) the reversal of his overpayment decision, and the decisions in all cases similar to his; (3) allowance for maximum fines, sanctions, and penalties against the Agency for its delay in processing Petitioner's appropriate annuity payments; and (4) the return of all repayments collected by the Agency to date.
ANALYSIS AND FINDINGS
EEOC Regulations provide that the Commission has jurisdiction over mixed case appeals on which the MSPB has issued a decision that makes determinations on allegations of discrimination. 29 C.F.R. � 1614.303 et seq. The Commission must determine whether the decision of the MSPB with respect to the allegation of discrimination constitutes a correct interpretation of any applicable law, rule, regulation or policy directive, and is supported by the evidence in the record as a whole. 29 C.F.R. � 1614.305(c).
In Petitioner's case, we find that the MSPB AJ erred by not applying the McDonnell Douglas analysis in deciding Petitioner's claims of age and disability discrimination when the Agency determined that he was not entitled to a waiver of the FERS overpayment he received as a result of being awarded SSA disability. While we find that the MSPB AJ correctly determined that Petitioner did not establish that the Agency discriminated against him, as alleged, we will analyze this matter according to the McDonnell Douglas paradigm.
Upon review of the record, the Commission finds that even assuming arguendo that Petitioner established a prima facie case of discrimination based on age and disability, the Agency provided legitimate, non-discriminatory reasons for its determination regarding the FERS annuity overpayment. The record makes clear that Petitioner was advised upon retirement that in the event he was approved for SSA disability retirement, his FERS annuity amount would be offset accordingly. Additionally, Petitioner was advised of the possibility of being held responsible for any overpayments that might occur. Petitioner presented no persuasive evidence of discriminatory animus surrounding the determination of his eligibility for SSA disability benefits, or the calculation of the overpayment amount. Record evidence clearly establishes that Petitioner was aware of the policies and procedures involving SSA disability benefits and his FERS annuity payments. Like the MSPB, the Commission finds that Petitioner failed to establish that the decision to find that he received a FERS overpayment, and determine a schedule for repayment, was based on any discriminatory animus.
CONCLUSION
Based upon a thorough review of the record, it is the decision of the Commission to CONCUR with the final decision of the MSPB finding no discrimination. For the reasons set forth herein, we conclude that the evidence in the record as a whole supports the MSPB's finding that Petitioner did not establish the affirmative defense of unlawful discrimination.
PETITIONER'S RIGHT TO FILE A CIVIL ACTION (W0610)
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, based on the decision of the Merit Systems Protection Board, within thirty (30) calendar days of 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 (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:
______________________________ Carlton M. Hadden's signature
Carlton M. Hadden, Director
Office of Federal Operations
__11/04/16________________
Date
1 This case has been randomly assigned a pseudonym which will replace Petitioner's name when the decision is published to non-parties and the Commission's website.
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