Edward Savage, Jr., Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, (S.E./S.W. Region) Agency.

Equal Employment Opportunity CommissionMar 28, 2000
04990044 (E.E.O.C. Mar. 28, 2000)

04990044

03-28-2000

Edward Savage, Jr., Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, (S.E./S.W. Region) Agency.


Edward Savage, Jr. v. United States Postal Service

04990044

March 28, 2000

Edward Savage, Jr., )

Complainant, )

)

v. ) Petition No. 04990044

) Appeal No. 01960183

William J. Henderson, ) Agency No. 3-S-1262-91

Postmaster General, )

United States Postal Service, )

(S.E./S.W. Region) )

Agency. )

____________________________________)

DECISION ON PETITION FOR CLARIFICATION

On July 23, 1999, the Equal Employment Opportunity Commission docketed

a petition for clarification of the order set forth in Savage v. United

States Postal Service, EEOC Appeal No. 01960183 (September 3, 1998).<1>

The Commission accepts this petition for clarification pursuant to 29

C.F.R. � 1614.503.

The issue presented herein is whether the Office of Federal Operations

was correct in ordering the agency not to offset the backpay award by

the amount of civil service annuity that the complainant received between

his retirement in 1991 and the date of his reinstatement by the agency.

Complainant filed a formal complaint in September 1991, in which he

alleged that he had been discriminated against on the bases of race

(Black), mental disability (perceived schizophrenia) and reprisal

(prior EEO activity) when the agency ignored his request to return to

regular duty and initiated an application for his disability retirement

pursuant to an agreement between the agency and the union. As part

of the agreement which preceded complainant's disability retirement,

he began receiving disability retirement annuity payments. The agency

subsequently issued a final agency decision (FAD) in which it determined

that complainant failed to establish a prima facie case of discrimination

on any of the above-stated bases. The FAD further found that even

assuming that complainant had established a prima facie case of disability

discrimination, the agency articulated a legitimate, nondiscriminatory

reason which was not shown to be a pretext for unlawful discrimination.

On appeal, the Commission found that the agency's failure to consider

complainant's request to return to regular duty was discriminatory

and that its reliance on the union settlement in this instance was a

pretext for disability discrimination. See Savage v. United States

Postal Service, EEOC Appeal No. 01960183 (September 3, 1998). As a

result, the Commission reversed the agency's FAD and ordered complainant

reinstated to his regular position with backpay, interest on back pay,

all other benefits and seniority retroactive to the date in August of

1990 when the agency removed complainant from his light duty position.

In addition, the Commission found that the agency shall not deduct from

the complainant's back pay award any disability retirement benefits

received by him, pursuant to the EEOC Policy Guidance: Cases Involving

the Deduction of Pension Payments from Back Pay Awards, Number N-915-054

(May 11, 1990). It is from this portion of the Commission's decision

that the agency seeks clarification.

In accordance with 29 C.F.R. � 1614.503(c), the Commission may issue a

clarification of a prior decision. A clarification cannot change the

result of a prior decision or enlarge or diminish the relief ordered,

but may further explain the meaning or intent of the prior decision.

In the present case, the agency needs clarification as to whether the

retroactive reinstatement of complainant has nullified the statutory

basis for payment of the disability annuity to him.

In the Commission's decision in EEOC Request No. 01960183, the agency

was ordered to not deduct from the complainant's back pay award any

disability retirement benefits received by him during the period after

his disability retirement was approved by the agency in 1991 and the date

he was reinstated to his regular position. We find that complainant's

intervening reinstatement to his regular position with the agency

in 1998 does not allow the agency to deduct from complainant's back

pay award the amounts of disability retirement benefits he received.

The Commission clearly held in its Policy Guidance that it is not

equitable for an employer to be permitted to recoup pension payments

made from a pension plan which, while usually funded by the employer,

is a separate legal entity from the employer. In addition, the United

States Court of Appeals for the Eight Circuit rejected the agency's

argument that disability annuity retirement benefits received by plaintiff

since his discharge should be deducted from plaintiff's back pay award.

Arneson v. Social Security Administration, 128 F.3d 1243, (8th Cir. 1997).

The circuit court applied the common law collateral source rule, stating

that the rule holds that a defendant's liability shall not be reduced

merely because the plaintiff's net damages are reduced by payments

received from others. The circuit court observed that it had already

addressed the same issue in an Age Discrimination in Employment Act case.

The circuit court did not believe that plaintiff's back pay award included

any agency contributions to plaintiff's disability pension. Moreover,

the court noted that the disability retirement benefits did not entirely

come from the agency, because plaintiff "has unquestionably contributed"

to his retirement fund. Finally, the circuit court pointed out that

the disability retirement payments to plaintiff were made to carry out

a social policy that

was wholly independent of back pay awards, and that they did not discharge

any direct obligation that the agency had to plaintiff.

Accordingly, the agency is ORDERED to comply with the Commission's prior

order as again set forth below to the extent it has not already done so.

ORDER (E1199)

1. To the extent it has not already done so, within ten (10) calendar

days of the date this decision becomes final, the agency shall reinstate

the complainant to his regular position with back pay, interest on back

pay, all other benefits and seniority retroactive to the date in August

1990 when the agency removed complainant from a light duty position, in

accordance with 29 C.F.R. �1614.501(c). The agency shall not deduct from

the complainant's award of back pay any disability retirement benefits

received by him.

2. 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 complainant,

including evidence that the corrective action has been implemented.

IMPLEMENTATION OF THE COMMISSION'S DECISION (K1199)

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 19848,

Washington, D.C. 20036. 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 64

Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter

referred to as 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)(Supp. V 1993). If the complainant files a civil action, the

administrative processing of the complaint, including any petition for

enforcement, will be terminated. See 64 Fed. Reg. 37,644, 37,659 (1999)

(to be codified and hereinafter referred to as 29 C.F.R. � 1614.409).

STATEMENT OF RIGHTS - PETITION FOR CLARIFICATION

COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (R1199)

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 (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:

March 28, 2000

Date Carlton M. Hadden, Acting Director

Office of Federal Operations

CERTIFICATE OF MAILING

For timeliness purposes, the Commission will presume that this decision

was received within five (5) calendar days of mailing. I certify that

the decision was mailed to complainant, complainant's representative

(if applicable), and the agency on:

______________ __________________________

Date Equal Employment Assistant

1On November 9, 1999, revised regulations governing the EEOC's federal

sector complaint process went into effect. These regulations apply to all

federal sector EEO complaints pending at any stage in the administrative

process. Consequently, the Commission will apply the revised regulations

found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the

present appeal. The regulations, as amended, may also be found at the

Commission's website at WWW.EEOC.GOV.