EEOC: Request to Repay a Debt For Overpayment of $103,321 Is Not Reprisal

 

EEOC Appeal No. 2020001986

The issue is whether Complainant established that the Agency discriminated against him in reprisal for prior protected EEO activity when it requested that he repay a debt.

At the time of events giving rise to this complaint, Complainant worked in a temporary position as a Regional Federal Benefits Officer at the Agency’s U.S. Embassy in Mexico City, Mexico. Complainant stated that he served in this position from October 3, 2010, through August 3, 2013. Report of Investigation (ROI) at 62. Complainant returned to the Social Security Administration (SSA), effective August 3, 2013. ROI at 40.

Complainant stated that the Agency continued to pay his full salary from August 3, 2013, through August 3, 2014, which was in addition to his regular salary from the SSA. ROI at 65. On August 20, 2014, the Agency signed the Notification of Personnel Action (“SF-50”) on the Termination of Complainant’s appointment, effective August 3, 2013. ROI at 97.

On October 13, 2015, the Agency informed Complainant that it had completed its review of his account and determined that Complainant was overpaid by a gross amount of $128,894.94, and that Complainant needed to repay a net amount of $103,928.94. ROI at 110-13. On November 1, 2015, Complainant submitted a request for a waiver of the entire debt. ROI at 105-09. On November 6, 2015, the Agency informed Complainant that his request was under review, and that the debt collection was suspended pending the review. ROI at 120.

On March 28, 2019, the Associate Comptroller (AC) issued a decision denying Complainant’s request for a waiver of the debt because he was not eligible for a waiver under 5 U.S.C. § 5584. AC noted that the overpayment was caused by an administrative error, but it did not relieve Complainant of his responsibility to repay the debt. AC determined that the correct amount of the overpayment was $103,321.00. ROI at 145-53. On May 13, 2019, the Agency approved Complainant’s request for an installment payment plan of $1,501.00 per month for 49 months, with a final payment of $1,453.04. ROI at 94-95.

On May 17, 2019, Complainant filed an EEO complaint alleging that the Agency discriminated against him in reprisal for prior protected EEO activity (Case No. HQ-13-0804-SSA)2 when as recently as April 10, 2019, he was requested to repay a debt stemming from his assignment in Mexico.3
[…]
AC stated that a waiver may not be granted if there exists an “indication of fraud, misrepresentation, or lack of good faith on the part of the employee” and that fault was considered to have existed if the employee knew, or should have known, through an exercise of due diligence that an error occurred but failed to take action, under 5 U.S.C. § 5584. AC stated that Complainant indicated that he received every Earnings and Leave statement from August 2013 through August 2014, while no longer working for the Agency. AC stated that an employee is responsible for verifying the accuracy of the Earnings and Leave statements and reporting errors in a timely manner. ROI at 882.
[…]
While Complainant stated that he believed that the payment was possibly a means to allocate remedies for his prior EEO complaint, Complainant did not prevail on his complaint and was not awarded any remedies. As such, we find that Complainant did not establish that the Agency retaliated against him for his prior protected EEO activity when it requested that Complainant repay a debt stemming from his assignment in Mexico.

Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency’s final decision finding that Complainant did not establish that the Agency discriminated against him in reprisal for prior protected EEO activity when it requested that he repay a debt.

 

Click to access 2020001986.pdf

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