B-180042, JUN 5, 1974

B-180042: Jun 5, 1974

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THAT THE EMPLOYEE HAD RESIGNED TO ACCEPT ANOTHER POSITION AND WAS ENTITLED TO BACK PAY UNDER 5 U.S.C. 5596. NO EXCEPTION WILL BE TAKEN TO PAYMENT OF BACK PAY SINCE STATEMENT ON SF 50 IS TANTAMOUNT TO AGENCY DETERMINATION OF DISCRIMINATION AND MEETS DOCUMENTATION REQUIREMENT IN 5 CFR 550.803(A). CIVIL SERVICE COMMISSION: THIS ACTION IS IN RESPONSE TO A LETTER DATED NOVEMBER 9. WHO WAS DEPUTY REGIONAL DIRECTOR. LEVIN WAS NOTIFIED ON MARCH 23. THAT HIS PROBATIONARY APPOINTMENT WAS TO BE TERMINATED EFFECTIVE APRIL 14. THE PROPOSED SEPARATION DATE WAS THEN CHANGED TO MAY 15. HE WAS SEPARATED ON MAY 15. THE APPEAL WAS REFERRED TO EEOC IN PHILADELPHIA FOR INVESTIGATION. THE CASE WAS FORWARDED TO THE EEOC PERSONNEL OFFICER IN WASHINGTON.

B-180042, JUN 5, 1974

THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION (EEOC) SEPARATED A PROBATIONARY EMPLOYEE FOR ALLEGED INEFFICIENCY WITHOUT FORMALLY MAKING DETERMINATION ON HIS GRIEVANCE OR HIS DISCRIMINATION COMPLAINT. SUBSEQUENTLY EEOC CHANGED SEPARATION DATE FROM MAY 16, 1972, TO JUNE 12, 1972, AND STATED ON NOTIFICATION OF PERSONNEL ACTION, SF 50, THAT THE EMPLOYEE HAD RESIGNED TO ACCEPT ANOTHER POSITION AND WAS ENTITLED TO BACK PAY UNDER 5 U.S.C. 5596. ALTHOUGH EEOC DID NOT SPECIFICALLY STATE THE EMPLOYEE HAD UNDERGONE AN UNJUSTIFIED PERSONNEL ACTION, NO EXCEPTION WILL BE TAKEN TO PAYMENT OF BACK PAY SINCE STATEMENT ON SF 50 IS TANTAMOUNT TO AGENCY DETERMINATION OF DISCRIMINATION AND MEETS DOCUMENTATION REQUIREMENT IN 5 CFR 550.803(A).

TO U.S. CIVIL SERVICE COMMISSION:

THIS ACTION IS IN RESPONSE TO A LETTER DATED NOVEMBER 9, 1973, FROM THE CHAIRMAN OF THE UNITED STATES CIVIL SERVICE COMMISSION REQUESTING A DECISION CONCERNING THE PROPRIETY OF A PAYMENT OF BACK PAY UNDER 5 U.S.C. 5596(B) TO MR. RICHARD J. LEVIN, WHO WAS DEPUTY REGIONAL DIRECTOR, EQUAL EMPLOYMENT OPPORTUNITY COMMISSION (EEOC), PHILADELPHIA, PENNSYLVANIA, FROM MAY 16, 1972, UNTIL JUNE 12, 1972.

THE RECORD SHOWS THAT MR. LEVIN WAS NOTIFIED ON MARCH 23, 1972, THAT HIS PROBATIONARY APPOINTMENT WAS TO BE TERMINATED EFFECTIVE APRIL 14, 1972. THE PROPOSED SEPARATION DATE WAS THEN CHANGED TO MAY 15, 1972. MR. LEVIN FILED A GRIEVANCE ON MAY 8, 1972. HOWEVER, HE WAS SEPARATED ON MAY 15, 1972, DUE TO HIS ALLEGED INABILITY TO PERFORM THE DUTIES OF HIS POSITION WITHOUT ANY FORMAL ACTION BEING TAKEN ON HIS GRIEVANCE. ON MAY 29, 1972, MR. LEVIN APPEALED THE TERMINATION OF HIS PROBATIONARY APPOINTMENT TO THE UNITED STATES CIVIL SERVICE COMMISSION, CHARGING DISCRIMINATION BECAUSE OF SEX AND/OR RELIGION. THE APPEAL WAS REFERRED TO EEOC IN PHILADELPHIA FOR INVESTIGATION. ON JUNE 13, 1972, THE CASE WAS FORWARDED TO THE EEOC PERSONNEL OFFICER IN WASHINGTON, D.C. SUBSEQUENTLY, A STANDARD FORM (SF) 50 (NOTIFICATION OF PERSONNEL ACTION) DATED AUGUST 8, 1972, CANCELED THE PRIOR TERMINATION OF MR. LEVIN'S APPOINTMENT. THE REMARKS ON SF 50 READ "EMPLOYEE ENTITLED TO BACK PAY UNDER 5 U.S.C. 5596 AT RATE $25,583 (GS- 15/01) FROM 5/16/72 THROUGH 6/12/72 (DATE OF EMPLOYEE'S VOLUNTARY RESIGNATION)."

SECTION 5596(B) OF TITLE 5, U.S.C. PROVIDES:

"(B) AN EMPLOYEE OF AN AGENCY WHO, ON THE BASIS OF AN ADMINISTRATIVE DETERMINATION OR A TIMELY APPEAL, IS FOUND BY APPROPRIATE AUTHORITY UNDER APPLICABLE LAW OR REGULATION TO HAVE UNDERGONE AN UNJUSTIFIED OR UNWARRANTED PERSONNEL ACTION THAT HAS RESULTED IN THE WITHDRAWAL OR REDUCTION OF ALL OR A PART OF THE PAY, ALLOWANCES, OR DIFFERENTIALS OF THE EMPLOYEE -

"(1) IS ENTITLED, ON CORRECTION OF THE PERSONNEL ACTION, TO RECEIVE FOR THE PERIOD FOR WHICH THE PERSONNEL ACTION WAS IN EFFECT AN AMOUNT EQUAL TO ALL OR ANY PART OF THE PAY, ALLOWANCES, OR DIFFERENTIALS, AS APPLICABLE, THAT THE EMPLOYEE NORMALLY WOULD HAVE EARNED DURING THAT PERIOD IF THE PERSONNEL ACTION HAD NOT OCCURRED, LESS ANY AMOUNTS EARNED BY HIM THROUGH OTHER EMPLOYMENT DURING THAT PERIOD; AND

"(2) FOR ALL PURPOSES, IS DEEMED TO HAVE PERFORMED SERVICE FOR THE AGENCY DURING THAT PERIOD, EXCEPT THAT THE EMPLOYEE MAY NOT BE CREDITED, UNDER THIS SECTION, LEAVE IN AN AMOUNT THAT WOULD CAUSE THE AMOUNT OF LEAVE TO HIS CREDIT TO EXCEED THE MAXIMUM AMOUNT OF THE LEAVE AUTHORIZED FOR THE EMPLOYEE BY LAW OR REGULATION."

THE APPLICABLE IMPLEMENTING REGULATIONS UNDER THE ABOVE STATUTE AND THE ANTIDISCRIMINATION STATUTES ARE FOUND IN 5 CFR 550.803(D) AND 713.271(B). THOSE REGULATIONS PROVIDE, IN EFFECT, THAT MR. LEVIN WOULD HAVE BEEN ENTITLED TO BACK PAY UNDER THE FOLLOWING CIRCUMSTANCES:

A) IF THE AGENCY MADE A DETERMINATION THAT THE PERSONNEL ACTION WAS IMPROPER OR ERRONEOUS ON THE BASIS OF EITHER SUBSTANTIVE OR PROCEDURAL DEFECTS AFTER CONSIDERATION OF THE EQUITABLE LEGAL AND PROCEDURAL ELEMENTS INVOLVED IN THE PERSONNEL ACTION, OR

B) IF THE AGENCY HAD MADE A FINDING THAT MR. LEVIN WAS DISCRIMINATED AGAINST AND AS A RESULT OF THAT DISCRIMINATION WAS DENIED AN EMPLOYMENT BENEFIT OR AN ADMINISTRATIVE DECISION ADVERSE TO HIM WAS MADE.

IN ORDER TO QUALIFY FOR BACK PAY UNDER THE LAW AND REGULATIONS THERE MUST BE A DETERMINATION BY THE AGENCY OR THE CIVIL SERVICE COMMISSION THAT THERE WAS AN UNJUSTIFIED OR UNWARRANTED PERSONNEL ACTION UNDER WHICH AN EMPLOYEE HAS SUFFERED A LOSS OF COMPENSATION. IN THE INSTANT CASE EEOC HAS MADE NO SPECIFIC WRITTEN DETERMINATION THAT THERE WAS AN UNJUSTIFIED OR UNWARRANTED PERSONNEL ACTION. HOWEVER, IT IS CLEAR THAT THE ACTION TAKEN BY THE AGENCY TO CANCEL THE SEPARATION OF MAY 15TH AND TO PERMIT THE EMPLOYEE'S CONTINUED EMPLOYMENT WAS THE MEANS OF ADJUSTING THE COMPLAINT OF DISCRIMINATION FILED BY MR. LEVIN WITH THE CSC WHICH FORWARDED THE MATTER TO THE AGENCY FOR AN INVESTIGATION. WHILE THERE WAS NO SPECIFIC FINDING OF DISCRIMINATION, FOR PURPOSES OF 5 U.S.C. 5596(B) THE AGENCY'S ADJUSTMENT ACTION IS REGARDED AS TANTAMOUNT TO A DETERMINATION THAT MR. LEVIN HAD UNDERGONE AN UNJUSTIFIED OR UNWARRANTED PERSONNEL ACTION RESULTING IN THE DEPRIVATION OF PAY.

THE RECORD OF DISCRIMINATION PROCEEDINGS REQUIRED TO BE KEPT BY THE AGENCY, TOGETHER WITH THE NOTIFICATION OF PERSONNEL ACTION DATED AUGUST 8, 1972, REASONABLY SATISFIES THE REQUIREMENT FOR DOCUMENTING THE AGENCY'S DETERMINATION THAT THERE WAS AN UNJUSTIFIED OR UNWARRANTED PERSONNEL ACTION. THEREFORE, WE HAVE NO OBJECTION TO THE PAYMENT OF BACK PAY UNDER THE CIRCUMSTANCES OF MR. LEVIN'S CASE.