EEOC Appeal 2020001013

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Gerry W., 1
Petitioner,
v.
Robert Wilkie,
Secretary,
Department of Veterans Affairs
(Veterans Health Administration),
Agency.
Petition No. 2020001013
Petition No. 0420140003
Agency No. 200P-0605-2002100863
DECISION ON A PETITION FOR ENFORCEMENT
On October 28, 2019, Petitioner, by and through his attorney, filed with the Equal Employment
Opportunity Commission (EEOC or Commission) a petition to enforce the Order set forth in
EEOC Appeal No. 0420140003 (April 29, 2016). 2 The Commission accepts this petition for
enforcement pursuant to 29 C.F.R. § 1614.503.
BACKGROUND
Petitioner was employed by the Agency as a Physician (Chief) VM-0602-10, at the Jerry L. Pettis
Memorial Veterans Medical Center in Loma Linda, California. He was terminated effective
November 9, 2001.
On January 9, 2002, Petitioner filed equal employment opportunity (EEO) complaint 200P-0605-
2002100863 alleging that he was terminated in violation of Title VII of the Civil Rights Act of
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.
2 This matter was originally docketed by EEOC as an appeal from a final Agency determination
(FAD) dated September 20, 2019. 	However, upon further review, it is clear that, in name and
substance, it was intended as a petition for enforcement.

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1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq., 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.
The Agency investigated the complaint, and Petitioner requested a hearing. During the hearing
process, on January 22, 2010, the parties resolved the case with a settlement agreement which
provided, in pertinent part, that:
7. 	The Agency will effectuate appropriate documentation to reflect that [Petitioner]
had uninterrupted service through the effective date of the settlement agreement,
whereupon he has agreed to retire. The Agency will make applicable employee and
employer 	contributions 	to 	the 	retirement 	system, 	including 	FERS 	[Federal
Employees Retirement System] and social security and take any other necessary
steps to effectuate this agreement. The Agency will take these actions within 60
days of the effective date of this settlement agreement.
In May 2010, Petitioner notified the Agency’s EEO function that the Agency had breached Term
7 of the settlement agreement. After three months passed without a determination on this claim,
Petitioner filed an appeal with the Commission. A day later, the Agency issued a determination
that it had, in fact, breached Term 7. The Commission agreed, finding this apparently occurred
based on the mistaken belief by Agency payroll that Office of Personnel Management (OPM)
regulations 	prevented 	the 	Agency 	from 	making 	these 	contributions. 	EEOC 	Appeal 	No.
0120103420 (Feb. 14, 2011). The Commission ordered the Agency to implement Term 7.
Thereafter, in July 2011, Petitioner filed a petition, as supplemented, with the Commission for
enforcement of its Order in EEOC Appeal No. 0120103420, since the Agency did not properly
calculate and document the amounts owed under Term 7, including its social security contributions
were understated by $144,620.20, its FERS contributions were understated by $339,709.82, and it
failed to provide calculation for its contributions to his Thrift Savings Plan (TSP). In EEOC
Petition No. 0420140003 (Apr. 29, 2016), the Commission determined that while the Agency
argued it complied with the Order, in the absence of an Agency statement addressing the alleged
errors Petitioner identified, the Agency failed to do so by paying the correct amount of retirement
benefits. The Commission found that the record contained no explanation on how the Agency
calculated the contributions it made for Petitioner’s FERS, social security, and TSP, and generally
ordered it to comply with Term 7. 3
By letter dated June 7, 2019, by and through his attorney, Petitioner notified the Agency’s EEO
function that the Agency was still in breach of Term 7. He explained, as later elaborated upon, that
he was recently advised by his attorney that his monthly annuity payment was less than he would
have thought had Term 7 been fully implemented, and after numerous conversations with OPM in
2019, believed the Agency may have provided the wrong dates of his service to OPM.
3 While the above litigation history also involved other settlement agreement terms, only Term 7
is at issue here.

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Petitioner asked the Agency to review the information it provided OPM to ensure that it provided
his correct dates of service and salary information.
Prior to issuing the FAD, the Agency’s EEO function consulted with an Agency benefits specialist
via email, who discussed how retirements are processed and gave an accompanying link to the
FERS retirement form. The emails and a blank FERS form are in the record. The FAD found or
referenced as follows: The FERS form asks the employee to provide his service dates and asks the
Agency to do the same based on the employee’s OPF. The employee then signs the FERS form
certifying that the dates of service are correct. After the employee retires, the retirement package
is then sent to the Defense Finance Accounting Service (DFAS), which after adding the
employee’s salary and retirement contributions forwards the package to OPM for adjudication.
When there are discrepancies (e.g., between OPF based service dates and payroll records), OPM
reaches out to the Agency for clarification and corrections, and OPM notifies the employee if it
determines the Agency provided dates of service that OPM disagrees are creditable. OPM offers
an appeals process for employees who disagree with its retirement application adjudication, and
employees can appeal to the Merit Systems Protection Board (MSPB). The Agency concluded in
effect, that Petitioner did not prove it breached Term 7.
The Agency also found that the doctrine of laches applied – an equitable remedy under which an
individual’s failure to diligently pursue their legal remedies can bar their claim. It recounted that
Petitioner was receiving his FERS retirement benefit for the better part of a decade before raising
the service dates issue and saw the service history the Agency put on the FERS form before that,
so he knew or should have known of the service dates matter years before.
In his petition for enforcement, Petitioner requests that the Commission enforce its Order in EEOC
Petition No. 0420140003 that the Agency comply with the Term 7 provision for the Agency to
make the applicable employee and employer contributions, including for FERS and social security.
He states that he served in the U.S. Army/National Guard for 29 years, and starting in 1983 was
employed by the Agency during extensive intervals when not on military duty, implying 	the
Agency may have made errors in his service date information it gave OPM.
In opposition to the petition for enforcement, the Agency argues that it complied with the Order in
EEOC Petition No. 0420140003, suggests laches applies, and argues that Petitioner’s claim that
his FERS annuity was incorrectly calculated is a collateral attack on OPM’s determination.
ANALYSIS AND FINDINGS
In the Agency’s compliance report dated April 18, 2011, created to show it complied with the
Commission’s Order in EEOC Appeal No. 0120103420, was a series of Notification of Personnel
Actions, Standard Form 50 (SF-50), evidencing Petitioner was continuously employed by the
Agency from dates prior to his termination on November 9, 2001, through his voluntary retirement
effective January 22, 2010. Each SF-50 evidences the position, grade and total annual salary,
including pay adjustments.

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In its compliance report dated October 7, 2016, created to show it complied with the Commission’s
Order in EEOC Petition No. 0420140003, the Agency included a spreadsheet, completed with the
assistance of its Financial Services Center and DFAS, listing contributions the Agency made for
Petitioner’s FERS annuity broken down by contributions made by Petitioner and the Agency on
an annual basis from December 21, 2001 through December 18, 2010, and a lump sum social
security payment made on March 26, 2011, broken down by the amounts attributed to the Agency
and Petitioner.
To the extent Petitioner contends that the Agency’s submission to OPM, made in conjunction with
DFAS, had inaccuracies regarding his service and salary history prior to his termination, we find
that this is outside the parameters of the settlement agreement. Moreover, we find that Petitioner’s
generalized concern that his FERS, and perhaps social security annuities, are lower than they
should be and this may have been caused by errors in his service and/or salary history is
insufficient, without more particularity, to establish breach, or for the Commission to order the
Agency again to provide more documentation and/or look further into the matter. 4
Accordingly, regarding Term 7, we find that the Agency is in compliance with the Commission’s
order in EEOC Petition No. 0420140003.
COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (S0610)
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. If you file a request to reconsider
and also file a civil action, filing a civil action will terminate the administrative processing of
your complaint.
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.
4 Because we have made this finding, we need not determine if Petitioner’s petition for
enforcement is barred by laches or uses the EEO process to collaterally attack the OPM retirement
process.

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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
September 3, 2020
Date