04980034
04-03-2000
v. ) Petition No. 04980034
Victor Barry, )
Petitioner, )
)
v. ) Petition No. 04980034
William J. Henderson, ) Appeal No. 01971041
Postmaster General, ) Agency No. 3-A-1278-91
United States Postal Service, )
Agency. )
____________________________________)
DECISION ON PETITION FOR ENFORCEMENT
On July 30, 1998, Victor Barry (hereinafter petitioner) filed this
Petition for Enforcement with the Equal Employment Opportunity Commission
(hereinafter, EEOC or Commission) requesting enforcement of the order for
remedial relief set forth in Barry v. U.S. Postal Service, EEOC Appeal
No. 01971041 (January 5, 1998).<1> This petition for enforcement is
accepted by the Commission pursuant to 29 C.F.R. � 1614.503.
The issue presented in this petition is whether the agency has fully
complied with the Order of the Commission set forth in EEOC Appeal
No. 01971041.
Petitioner originally filed a formal EEO complaint on July 5, 1991,
alleging that he had been subjected to unlawful discrimination on the
bases of age (DOB 11/27/34) and sex (male). The parties entered into a
settlement agreement on July 23, 1992, which was amended on June 8, 1993.
This settlement agreement provided, in pertinent part, that petitioner
would be hired for the next available position for which he was qualified
and that after being hired he would have a seniority date of May 24,
1991.<2>
In a letter to the agency dated August 30, 1996, petitioner requested
that the agency implement the terms of the settlement agreement and
use the May 24, 1991 seniority date to calculate his retirement date.
The agency issued a final agency decision dated November 6, 1996,
declining to implement the terms of the settlement agreement and asserting
that the May 24, 1991 seniority date applied for bidding purposes and
for becoming a regular employee but not for retirement purposes.
In Barry v. U.S. Postal Service, EEOC Appeal No. 01971041 (January 5,
1998), the Commission held that the term seniority used in the settlement
agreement entered into by the parties encompassed both competitive and
benefits seniority. The Commission ordered the agency to comply with the
terms of the July 23, 1992 settlement agreement, as amended June 8, 1993.
Specifically, the Commission ordered the agency to change petitioner's
seniority date to May 24, 1991, and use this seniority date to calculate
his retirement eligibility, adjusted pay rate, and adjusted annual and
sick leave.
In response to petitioner's Petition for Enforcement, the agency argues
that it cannot comply with the conditions of the settlement agreement as
stated in the January 5, 1998 Order. Specifically, the agency claims that
its Compensation and Benefits Branch found that the Commission's Order
violated Office of Personnel Management (OPM) regulations. The agency
argues that OPM will not honor a settlement agreement which merely gives
constructive credit to an employee that would enhance retirement benefits
above those earned through actual service. The agency cites to OPM
Guidelines for Settlement of Federal Personnel Actions which state that:
Settlement agreements cannot create enhanced retirement benefits by
�deeming' an individual to have been employed during periods in which the
individual was actually separated from the service, for the purpose of
giving the individual enough service to qualify for an annuity, or to
increase the individual's annuity. Creating fictitious service solely
for retirement purposes conflicts with the provisions of CSRS and FERS
which make the actual length of Federal service of an employee a specific
part of the computation of an annuity.
Also the agency relies on an excerpt from the CSRS and FERS Handbook,
entitled Creditable Civilian Service, Chapter 20, Section 20B1.1-2, which
provides that �under FERS, no credit is given for any retirement purposes
unless the employee's deductions or a deposit is in the retirement fund
for the period of service.� According to the agency, these two provisions
indicate that federal employees may not receive retirement credit for
periods they were not employed and therefore, the constructive credit that
the Commission is ordering is inconsistent with civil service law.
The Commission has interpreted the term retroactive seniority, as used in
a settlement agreement without qualifying language, to include retroactive
seniority for all purposes. Barbour v. U.S. Postal Service, EEOC Request
No. 05921004 (May 20, 1993). As in the present case, the complainant
in Barbour was hired by the agency pursuant to a settlement agreement
that provided for adjustment of her seniority date. The Commission set
forth its interpretation of the meaning of the term �seniority date� as
follows:
The concept of seniority generally encompasses both the allocation
of benefits among competing employees (competitive seniority)
and noncompetitive benefits earned under the employment agreement
)benefits seniority). See Franks v. Bowman Transportation Co., Inc.,
424 U.S. 747, 767 (1976), citing S. Slichter, J. Healy, & E. Livernash,
The Impact of Collective Bargaining on Management, 104-115 (1960).
The settlement agreement in the present case contains no language which in
any way limits or qualifies the definition of seniority. Therefore, the
Commission finds that it is reasonable to interpret the term �seniority,�
without such qualifying language, as encompassing seniority for all
purposes, including competitive status seniority and benefits seniority.
See Jerome Griffin v. USPS, EEOC Request No. 05920009 (April 28, 1992);
Joanne Villanueva v. USPS, EEOC Request No. 05920223 (May 14, 1992).
Barbour, EEOC Request No. 05921004.
Also, the facts in the present case indicate that following the execution
of the amended settlement agreement, the agency used the May 24, 1991
date to compute petitioner's retirement eligibility as reflected in
his 1992, 1993, 1994, and 1995 Personal Statement of Benefits and his
Annuity Estimate Statement (August 25, 1995). It was not until August
21, 1996, three months prior to his retirement, that petitioner received
correspondence from the agency indicating that the agency was not using
his May 24, 1991 seniority date in calculating retirement eligibility.
Thus, the Commission finds, as supported by the agency's actions during a
three-year period following execution of the amended settlement agreement,
that the May 24, 1991 seniority date used in the settlement agreement
was also meant to apply to retirement benefits.
Upon finding that the agency agreed to use the May 24, 1991 date for
purposes of determining petitioner's seniority and eligibility for
retirement, we now respond to the agency's argument that the retroactive
seniority date provided for in the settlement agreement does not entitle
complainant to enhanced retirement benefits. Initially, we find that
the settlement agreement does not merely impact the retirement fund but
it also imposes liability on the agency. Specifically, the agreement
ordered the agency to hire petitioner with a retroactive seniority date
of May 24, 1991, and therefore required the agency to use the retroactive
seniority date to calculate petitioner's adjusted pay rate and adjusted
annual and sick leave, in addition to his retirement eligibility.
In addition, we find that OPM regulations allow for retirement benefit
credits to be granted as long as there is a deposit in the retirement
fund for the period of service at issue. With regard to funding the
enhanced retirement benefits, the Commission notes that the settlement
agreement does not purport to impose the entire financial burden on
the Retirement Fund. Instead, the Commission clarifies that the agency
and petitioner must each pay their respective shares of full retirement
deposits. The record reveals that by agreement dated March 20, 1998,
petitioner has authorized OPM to deduct monies owed by him for necessary
contributions to the Federal Employees Retirement System (FERS) covering
the period May 24, 1991 through November 28, 1992. We note, however,
that the agency has not expressly agreed to fund its share of retirement
contributions for this period. In finding that the agency agreed to use
the seniority date for purposes of determining petitioner's retirement
eligibility, we also find that the agency effectively agreed to pay its
own share of increased contributions to the retirement fund. Therefore,
pursuant to our authority in 29 C.F.R. � 1614.504(c), we order the agency
to take prompt corrective steps to implement the settlement agreement.
The Commission grants the petition for enforcement and finds that the
agency has not yet complied with the Order in EEOC Appeal No. 01971041.
ORDER
The agency is ORDERED to comply with the terms of the settlement
agreement entered into between complainant and the agency on July 23,
1992, as amended June 8, 1993. The agency shall so comply by changing
complainant's seniority date, as defined in this decision, to May 24,
1991, within thirty (30) calendar days of the date this decision becomes
final. Use of this seniority date shall include, but not be limited
to, calculation of complainant's retirement eligibility, adjustment of
complainant's pay rate, and adjustments of complainant's annual leave
and sick leave. Consequently, the agency shall contribute the monies
owed as its contribution to the retirement fund in view of complainant's
seniority date of May 24, 1991. The agency shall submit a compliance
report, with proof of all relevant actions taken, 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).
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:
April 3, 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 after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
Date 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.
2The record indicates that complainant was hired as a transitional
employee on September 5, 1992, and was promoted to a career position on
November 22, 1992.