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.