Judith A. Nease, Complainant,v.Louis Caldera, Secretary, Department of the Army, Agency.

Equal Employment Opportunity CommissionApr 6, 2000
04990039 (E.E.O.C. Apr. 6, 2000)

04990039

04-06-2000

Judith A. Nease, Complainant, v. Louis Caldera, Secretary, Department of the Army, Agency.


Judith A. Nease v. Department of the Army

04990039

April 6, 2000

Judith A. Nease, )

Complainant, ) Petition No. 04990039

) Appeal No. 01954749

v. ) Agency No. 94-09-001

)

Louis Caldera, )

Secretary, )

Department of the Army, )

Agency. )

____________________________________)

DECISION

On June 2, 1999, through her attorney, petitioner filed a Petition for

Enforcement of the Order set forth in Nease v. Department of the Army,

EEOC Appeal No. 01954749 (July 9, 1996).<1> On June 11, 1999, the agency

filed a response.<2> In its prior decision, the Commission found that

a settlement agreement entered into between the parties violated the

provisions of the Older Workers Benefit Protection Act ("OWBP Act")<3>

and, consequently, petitioner was entitled to demand that the agency

process her underlying EEO complaint. In the Order, the Commission

directed the agency to notify petitioner of "her option [either] to

return to the status quo prior to the signing of the settlement agreement

[by returning] any monies or benefits received pursuant to the agreement

[or to keep the benefits conferred pursuant to the agreement and abide

by its terms]." Both parties now request that the Commission modify

the prior decision to permit petitioner to pursue her EEO complaint

without tendering back the benefits received and clarify the decision

by defining the term "status quo ante" under the facts of this matter.

This Petition for Enforcement is accepted pursuant to the provisions of

29 C.F.R. � 1614.503(a) and, in response to the petition, the Commission

hereby issues a clarification of the prior decision.<4>

ISSUES PRESENTED

Whether the agency may permit petitioner to reinstate her prior EEO

complaint without tendering back monies already received as a result

of a settlement agreement and, should petitioner elect to reinstate

her prior complaint, whether the agency is barred from reinstating

the removal action which became effective prior to execution of the

settlement agreement.

BACKGROUND

The record reflects that petitioner was employed by the agency as Chief of

the Community Mental Health Service, GS-12, at an agency Health Clinic.

Petitioner contacted the agency's EEO office in December 1991 and

expressed concern that agency officials were attempting to remove her

from employment. By letter dated January 8, 1992, the agency informed

petitioner that her performance was less than satisfactory in several

critical job elements and that she was placed on a 120-day Performance

Improvement Plan ("PIP"); if her performance did not improve by the end

of the PIP period, her employment would be terminated. Thereafter,

agency officials determined that her performance had not improved to

the satisfactory level. On May 11, 1992, petitioner was issued a Letter

of Proposed Removal. Petitioner sought EEO counseling on May 29, 1992,

and alleged that she had been subjected to discrimination on the bases

of sex, age (61) and disability (cerebral palsy and arthritis).<5>

Petitioner contended that she had been denied training and reasonable

accommodation for her disability, and subjected to discriminatory

harassment culminating in her proposed removal. On June 24, 1992, the

agency issued petitioner a Notice of Removal effective June 30, 1992.

Petitioner timely filed an appeal with the Merit Systems Protection Board

("MSPB") challenging her removal.

Early in July 1992, an EEO Specialist contacted the relevant agency

officials in an attempt to resolve this matter, noting that while

petitioner sought recission of the adverse action, retention in a

comparable agency position, and other relief, petitioner was particularly

concerned that she was not eligible for retirement with full benefits

(including medical insurance) until November 1992. The officials

responded that petitioner's performance was such that they had no position

in the Health Clinic into which she could be reassigned.

Thereafter, the agency EEO Officer contacted petitioner's supervisors

and discussed rescinding the Letter of Removal (which had already become

effective) and reinstating her employment. The EEO Officer proposed that

petitioner be detailed to the EEO office for five (5) weeks in order to

permit her to fulfill certain time in service requirements and that she

then be placed in leave without pay status ("LWOP") until November 16,

1992, the date she would become eligible to retire with full benefits.

Provided that petitioner did not return to the Health Clinic, the

officials indicated that they found this proposal acceptable.

A settlement agreement was prepared; petitioner executed the agreement

on July 16, 1992, and an agency official executed it on July 20, 1992.

The agreement provided that the agency would: (a) cancel the separation

action effected June 30, 1992, by withdrawing the Notice of Removal and

replacing it with another decision letter effective November 20, 1992;

(b) carry petitioner in annual leave status from July 1, through July 16,

1992; (c) return petitioner to regular duty and pay status from July 17,

until August 29, 1992, and detail her to unevaluated duties in the EEO

Office at her former GS-12, step 04 pay rate; and (d) convert petitioner

to LWOP status from August 30, through November 16, 1992, allowing her

to remain on the rolls until she became eligible for retirement from

government service. In exchange, petitioner would: (a) complete and

submit all necessary documents to request retirement effective November

16, 1992, and acknowledge that, should she fail to retire, her removal

would be effected pursuant to the Letter of Removal effective June 30,

1992; (b) withdraw her pending EEO complaint; and (c) waive her right

to appeal any separation action, should it be effected, to the MSPB.

Shortly thereafter, petitioner filed a letter with the MSPB requesting

withdrawal of her MSPB appeal and enclosed a copy of the settlement

agreement. An MSPB Administrative Judge held a telephonic conference

with the parties and explained that, if the appeal was dismissed based

on the settlement agreement, the dismissal would be with prejudice.

According to the MSPB's records, the parties indicated that they wished to

have the appeal dismissed and to enter the settlement agreement into the

record for enforcement purposes. The MSPB Administrative Judge determined

that the matter was within her jurisdiction, issued an initial decision

which dismissed the appeal with prejudice and which advised petitioner

that, among other matters, she could file a petition for review by the

full board within thirty five days if she believed that the settlement

agreement was involuntary.

On October 8, 1993, petitioner contacted an agency EEO Counselor and

alleged that she had been forced to retire against her will, having signed

the settlement agreement while under pressure and in a state of panic.

On May 4, 1994, petitioner filed an EEO complaint alleging that the agency

sought to remove her due to discrimination based on her sex, age and

disability. On June 7, 1994, the agency issued a final agency decision

("FAD") dismissing the complaint. Petitioner timely filed an appeal

with the Commission, which was docketed as EEOC Appeal No. 01944381.

Meanwhile, on June 20, 1994, petitioner submitted an appeal form to the

MSPB which alleged that her retirement was involuntary. The MSPB treated

the filing as a petition for review of the initial decision dismissing

the appeal. Because such a petition was untimely, the MSPB afforded

petitioner the opportunity to file argument and evidence showing good

cause for the delay. In its decision, the MSPB dismissed the petition

on the basis that petitioner's argument and evidence failed to establish

good cause for the delay inasmuch as she had accepted the benefits of the

settlement agreement and ignored the unambiguous instructions set forth

in the initial decision regarding how to seek review of that decision,

instead first sending letters and pleadings to the President, members

of Congress, agency officials and this Commission. See MSPB Docket

No. AT0342920824-I-1 (July 31, 1995).

While petitioner's MSPB petition was pending, the Commission issued

its decision on her EEOC appeal. The Commission found that the agency

erred in treating petitioner's claim as a new EEO complaint and should

have processed the matter as an allegation that the agency had breached

the settlement agreement. The Commission vacated the agency's FAD and

remanded the matter to the agency for processing. The Commission's

decision also advised the agency to consider the applicability of the

OWBP Act in its assessment of the validity of the settlement agreement.

See Nease v. Department of the Army, EEOC Appeal No. 01944381 (December

7, 1994).

In a FAD dated March 15, 1995, the agency found that it had fully complied

with the terms of the settlement agreement. It further found that

petitioner was represented by counsel during the settlement negotiations

and, therefore, concluded that she was advised of her rights and was

not subjected to duress or coercion. In this regard, the agency noted

that petitioner had not contacted its EEO office to raise allegation of

duress until some 15 months after execution of the settlement agreement.

Petitioner timely filed an appeal from this FAD.

In our prior decision on that appeal, the Commission noted that the

settlement agreement violated the provisions of the OWBP Act in that the

agreement failed to specifically state that petitioner was waiving her

rights or claims under the Age Discrimination in Employment Act of 1967

(ADEA), as amended, 29 U.S.C. � 621 et seq.; there was no evidence that

petitioner had been advised in writing to consult with an attorney prior

to execution; and petitioner had submitted affidavits controverting the

agency's finding that she had been given a reasonable period of time

to consider the agreement prior to execution. Because the settlement

agreement violated the OWBP Act but petitioner had received most or all

of the benefits promised under the agreement, the Commission stated that

such benefits must be returned if she wished to reinstate her underlying

complaint for further processing. Therefore, the Commission directed

the agency to notify petitioner of "her option [either] to return to the

status quo prior to the signing of the settlement agreement [by returning]

any monies or benefits received pursuant to the agreement [or to keep the

benefits conferred pursuant to the agreement and abide by its terms]."

See Nease v. Department of the Army, EEOC Appeal No. 01954749 (July

9, 1996).

The record reflects that petitioner indicated that she elected to

reinstate her underlying complaint. Thereafter, the agency and

petitioner's counsel expended considerable time disputing the amount

of monies or benefits received pursuant to the agreement. On June 23,

1997, petitioner's counsel submitted a check to the agency in the amount

of $1.00. The agency returned this check and, by letter dated September

18, 1997 submitted a demand for repayment of $6,690.83. The agency

stated that the Office of Personnel Management ("OPM") had determined

that petitioner had received this amount in benefits from December 1,

1992, to September 30, 1997. In addition, by letter dated December 9,

1997, the agency informed petitioner's counsel that it had drafted a

Notice of Right to File an EEO complaint which advised petitioner of her

right to file a complaint within 15 days from its receipt. However, the

agency further stated that, if petitioner elected to reinstate her EEO

complaint by repaying that sum, the agency would reinstate the removal

action effected on June 30, 1992 and so advise OPM. The agency opined

that OPM would then cancel any and all retirement and other benefits

petitioner was presently receiving.

On January 26, 1998, the U.S. Supreme Court issued its decision in Oubre

v. Entergy Operations, Inc., 117 S.Ct. 1466 (1998). Finding that Oubre

would not require petitioner to tender back any sums already received,

the agency indicated that it would abandon its claim to such sums,

provided that this Commission would not find such an action to constitute

a violation of the Order contained in our prior decision. However,

the agency remained of the opinion that should petitioner pursue her

underlying EEO complaint, it was entitled to reinstate the removal action

effected on June 30, 1992, and so advise OPM, which would then cancel

payment of any and all future retirement and other benefits to petitioner.

On June 6, 1999, petitioner's counsel filed this Petition for Enforcement.

See supra, n.1. Counsel argues that petitioner worked in the agency's

EEO office "for over one month in order to accrue sufficient time

for retirement and retirement benefits and [the agency] received the

bargained-for benefit of her labor and skills." Since "it is impossible

for the [agency] to tender back" petitioner's labor, counsel argues that

the agency cannot reinstate the removal action effected on June 30, 1992.

Counsel appears to assert that after the five week detail to the EEO

office ended on August 29, 1992, petitioner did not merely remain on

the agency's rolls in LWOP status until November 16, 1992, but rather

was "transfer[red] back to the health center as Chief, Mental Health,

where she is still �employed'... [since the agency] has never rescinded"

that action. Accordingly, the brief demands back pay since August 1992,

with grade increases and placement in "a post assignment consistent with

her new G-13 [sic] grade and position as Chief, immediately."<6>

The agency filed comments on June 11, 1999. See supra, n.2. In its

comments, the agency requests that the Commission amend its prior

decision to allow the agency to permit petitioner to elect to reinstate

her underlying complaint without first tendering back benefits already

received. The agency recounts the history of this matter and includes

copies of material reflecting its opinion that should petitioner purse

her underlying EEO complaint, it may reinstate the removal action effected

on June 30, 1992 and so advise OPM. The agency ends its comments with a

request that the Commission "define status quo ante in the instant case."

Petitioner's counsel thereafter filed additional material<7>

which further details the argument that since the release signed by

petitioner did not comply with the OWBP Act's stringent safeguards,

it is unenforceable. Therefore, the brief contends that the status

quo ante in this matter is not petitioner's removal on June 30, 1992

but her reinstatement with unclassified duties until August 28, 1992.

The brief asserts that petitioner then automatically returned to her

position as Chief, Mental Health, where she will continue until she

voluntarily retires some fifteen years in the future. Accordingly,

the brief contends that the only determinations left to be made concern

the amount of back pay due (estimated to be $402,831.50 plus interest),

her current grade and step level, and the amount of legal fees due.

The brief asserts that petitioner has filed other complaints since 1991,

and that she wishes to go forward with those complaints "notwithstanding

[the agency's] misplacement, altering and/or turning over some originals

to ... co-conspirators and/or ... destroying/shedding of formal complaints

and letters properly completed and submitted by [petitioner] prior to her

notice of proposed removal." Petitioner seeks the Commission's assistance

in: facilitating her official return; being re-acclimated to her position

as Chief, Mental Health, with all necessary "staff and time to get her

up to speed;" securing her promotion to the GS-13 level; obtaining the

necessary forms for back pay and interest; ensuring that petitioner no

longer has to pay for her "retirement advances;" and obtaining full,

legible and certified copies of her EEO and personnel files.

Thereafter, the agency filed a reply brief which reviews the facts of

this matter and asserts that petitioner's contentions are "ludicrous."

The agency asserts that should petitioner reinstate her EEO complaint,

the agency is entitled to "change [her] status from �retired' to �removal'

[and so notify] OPM." The agency asserts that petitioner is not entitled

to an award of attorney's fees as she has not prevailed on the merits of

her complaint. The agency asserts that it has already provided petitioner

with a complete copy of her EEO complaint and personnel files (except

for certain legal opinions rendered to the agency's EEO office by its

legal counsel) and denies that agency officials destroyed or shredded

any documents.

ANALYSIS AND FINDINGS

The agency has abandoned any claim that it is entitled to demand that

petitioner tender back any sums received as a result of the settlement

agreement prior to reinstatement of her underlying complaint. The

Commission finds that this abandonment does not constitute a violation

of our prior Order. The Commission notes that it is unpersuaded by

petitioner's assertion that the agency has destroyed documents and failed

to provide her with unspecified material from her EEO and personnel files.

The Commission finds no support for petitioner's contention that, because

the settlement agreement did not comply with the OWBP Act and has no

effect on her ADEA claim, she is therefore still employed by the agency.

Petitioner reasons that because the Notice of Removal which became

effective on June 30, 1992 was withdrawn under the settlement agreement

and because the agency never issued the Notice of Removal effective

November 20, 1992 (since petitioner had retired as provided for in the

agreement), she is still employed by the agency. Petitioner's reasoning

is flawed. Petitioner's counsel does not cite any legal authority in

support of the proposition that a complainant in these circumstances

is restored to employment. Rather, the courts merely have permitted

complainants to pursue their underlying ADEA claims without tendering

back the benefits received. See, e.g., Long v. Sears Roebuck & Company,

105 F.3d 1529, 1541 (3rd Cir. 1997); Forbus v. Sears Roebuck & Company,

958 F.2d 1036, 1041 (11th Cir. 1992). Accordingly, unless and until

petitioner prevails on her underlying complaint, she is not entitled to

reinstatement or back pay.

The next issue to be addressed is the question of petitioner's status.

As noted above, petitioner was removed from the agency's employment

effective June 30, 1992. Over two weeks later, after petitioner

executed the settlement agreement on July 16, 1992, the agency took the

following actions: (1) the agency rescinded the removal; (2) the agency

retroactively placed petitioner on annual leave status from July 1,

through July 16, 1992; (3) the agency detailed petitioner to the agency's

EEO office where she worked from July 17, through August 29, 1992; and

(4) the agency placed petitioner in LWOP status from August 30, through

November 16, 1992. Petitioner then retired. The agency reasons that

the parties revert to the status quo ante and, therefore, petitioner

assumes the position of an employee who was terminated effective June

30, 1992. The Commission notes that its prior decisions support the

agency's reasoning. See, e.g., O'Farrell v. United States Postal Service,

EEOC Petition No. 04920001 (February 2, 1992) (petitioner's EEO complaint

challenged her removal which became effective in December 1989; she was

reinstated pursuant to a settlement agreement executed in January 1990;

the Commission found that the agency had breached three of the eleven

clauses of the settlement agreement and cautioned petitioner that, should

she elect to reinstate her prior complaint, such an election "shall

result in, inter alia, the reinstatement of the removal action"); Lyons

v. Department of Veterans Affairs, EEOC Appeal No. 01976838 (November 5,

1998) (in the settlement agreement, the agency agreed to rescind a Notice

of Proposed Removal and reassign the employee to a different position;

after finding that the agency breached the terms of the agreement,

the Commission cautioned that electing to reinstate the underlying EEO

complaint would require return to the status quo ante).

While petitioner's counsel argues that petitioner's performance of

duties in the agency's EEO office precludes the agency from reinstating

the removal action effected on June 30, 1992, we note that petitioner

ceased performing duties on August 29, 1992 and then remained in LWOP

status through November 16, 1992. Whether OPM would determine that

petitioner's performance of duties from July 17 until August 29, 1992,

precludes the agency from effecting a removal action on June 30, 1992,

is a question of personnel law and the Commission has no authority over

OPM's determinations in this area. See Komiskey v. Department of the

Army, EEOC Appeal No. 01955696 (September 5, 1996) (the Commission found

a settlement agreement to be invalid based on the mutual mistake of

the parties after OPM refused to implement the terms of the agreement

by permitting the complainant to both receive a discontinued service

retirement and have all adverse information removed from her records.)

However, should petitioner elect to reinstate her underlying complaint, we

are aware of no provision in the ADEA or our regulations which would bar

the agency from effecting petitioner's termination on June 30, 1992.<8>

As a final matter, petitioner's counsel demands attorney fees for

services performed in connection with both the instant petition and the

prior appeal. With respect to the instant petition, we are not persuaded

that petitioner is a "prevailing party" in this matter inasmuch as the

agency had already informed petitioner that it had abandoned any demand

that she tender back previous payments received under the settlement

agreement, notwithstanding the Commission's prior Order. With respect

to the prior appeal, we note that the Commission generally orders the

payment of attorney fees when, on appeal, we find that a settlement

agreement has been breached or is otherwise invalid and we reverse the

agency's findings to the contrary. See, e.g., Brooks v. Social Security

Administration, EEOC Request No. 05970229 (October 8, 1998). However,

the prior appeal's reversal of the FAD and its Order directing the

agency to give petitioner the opportunity to elect to reinstate her EEO

complaint were based solely on the finding that the settlement agreement

violated the OWBP Act. The OWBP Act amended Section 7 of the ADEA, and

the Commission has previously noted that the ADEA does not provide for the

award of attorney's fees for federal sector complainants who prevail at

the administrative level. The Commission is without authority to order

the payment of attorney's fees by federal agencies in ADEA cases due

to the doctrine of sovereign immunity, absent an amendment to the ADEA

or a judicial interpretation providing for the award of attorney's fees

at the administrative level. See Falks v. Department of the Treasury,

EEOC Request No. 05960250 (September 5, 1996). Accordingly, the prior

decision properly omitted an award of attorney's fees.

CONCLUSION

For the reasons set forth above, the Commission finds that the agency

may permit petitioner to elect to reinstate her prior EEO complaint

without tendering back any monies already received as a result of the

settlement agreement executed by the parties in July 1992. The agency

is ordered to inform petitioner of her right to make such an election

in accordance with the Order below.

ORDER

Within twenty (20) days after this decision becomes final, the agency

is ORDERED to issue to petitioner a notice advising her of the right

to elect to reinstate her prior EEO complaint. The notice shall: (a)

provide that petitioner must notify the agency in writing within sixty

(60) days of receipt of said notice should she elect to reinstate the

prior complaint; and (b) advise petitioner that she should consult with

an attorney prior to making a decision on whether to elect to reinstate

her prior complaint.

Should petitioner timely elect to reinstate her prior EEOC complaint,

the agency is ORDERED to process the complaint in accordance with

64 Fed. Reg. 37,644, 37,656-57 (1999)(to be codified at 29 C.F.R. �

1614.108). The agency shall acknowledge to petitioner that it has

reinstated the complaint within thirty (30) calendar days of the date the

election is received. The agency shall issue to petitioner a copy of the

investigative file and also shall notify petitioner of the appropriate

rights within one hundred fifty (150) calendar days of the date this

decision becomes final, unless the matter is otherwise resolved prior

to that time.

A copy of the agency's notification to petitioner and, if applicable,

a copy of the notice that transmits the investigative file and notice

of rights, must be sent to the Compliance Officer as referenced below.

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 PETITIONER'S RIGHTS ON PETITION FOR ENFORCEMENT

COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (P0400)

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 (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:

April 6, 2000

_______________ _____________________

Date Frances M. Hart

Executive Officer

Executive Secretariat

1 The filing was captioned "Notice of Appeal," and was inadvertently

docketed as EEOC Appeal No. 01994971. By letter dated July 13, 1999,

the Commission notified the parties that it had administratively closed

that appeal and re-docketed the filing as a Petition for Enforcement.

2 The response was captioned "Agency Motion to Reopen Appeal and Modify

Decision."

3 104 Stat. 983, 29 U.S.C. � 626.

4 On 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.

5 The Rehabilitation Act was amended in 1992 to apply the standards in

the Americans with Disabilities Act (ADA) to complaints of discrimination

by federal employees or applicants for employment. Since that time,

the ADA regulations set out at 29 C.F.R. Part 1630 apply to complaints

of disability discrimination. These regulations can be found on EEOC's

website: WWW.EEOC.GOV.

6 Insofar as the brief also demands "Certification of Class Action for

other similarly situated older federal employees and/or former federal

employees [who have been required to tender back the benefits received

under a settlement agreement which violates the OWBP Act] and al [sic]

cost thereto ... against EEOC, [the agency], and/or the various agencies

aided and abetted by them," counsel is advised that the procedures for

instituting a class complaint are set forth at 64 Fed. Reg. 37,644,

37,658-59 (1999) (to be codified and hereinafter referred to as 29

C.F.R. � 1614.204). Counsel is also advised that this is not the proper

forum to raise retaliatory whistle-blowing claims, Racketeer Influenced

and Corrupt Organizations (RICO) claims, violations of equal protection,

or claims of conspiracy. In addition, treble and punitive damages are

not available inasmuch as Section 102(a)(3) of the Civil Rights Act of

1991 specifically disallows punitive damages against a government entity

such as the agency. See Richardson v. United States Postal Service,

EEOC Appeal No. 01930624 (August 9, 1994); Jackson v. United States

Postal Service, EEOC Appeal No. 01923399 (November 12, 1992), aff'd,

EEOC Request No. 05930306 (February 1, 1993).

7 Petitioner's counsel had requested an extension of time to permit the

filing of additional argument. The Commission granted the request and

notified the parties that petitioner was permitted to file additional

argument until August 16, 1999, with any reply brief from the agency

due by September 15, 1999.

8 In either event, it appears that petitioner's main concern is that no

termination action become effective prior to November 16, 1992.