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DeRose v. Rice

February 16, 2006


The opinion of the court was delivered by: John D. Bates United States District Judge


More than fourteen years have passed since plaintiff Wally DeRose left his job with the State Department at age 52. Having failed in his efforts to obtain reappointment with the agency, he initiated an administrative complaint alleging that the State Department's refusal to re-hire him violated the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 633a. In a Final Agency Decision ("FAD") by the agency's Department of Equal Employment Opportunity and Civil Rights ("EEO Office") issued in 2001, plaintiff won a judgment against defendants that, among other things, awarded plaintiff ten years of backpay and required defendants to reappoint plaintiff to his former position and restore any lost retirement benefits. Neither plaintiff nor defendants appealed the FAD to the Equal Employment Opportunity Commission ("EEOC"), but plaintiff subsequently concluded that defendants had not fulfilled the requirements of the FAD and petitioned the EEOC in May 2002 for an order of enforcement. The EEOC's Office of Federal Operations denied that petition in March 2003, finding no evidence of agency noncompliance. Thereafter, plaintiff initiated this lawsuit, pursuant to the ADEA, seeking a judicial interpretation of the FAD's terms; a declaration that defendants had failed to comply with the FAD, as interpreted; and a court order directing the State Department to comply with the FAD. Now pending before this Court is defendants' motion to dismiss for failure to state a claim upon which relief can be granted or, in the alternative, for summary judgment. For the reasons that follow, the Court concludes (1) that it has jurisdiction, pursuant to 28 U.S.C. § 1331, over an ADEA-based claim in which a federal employee or applicant seeks enforcement of a favorable Final Agency Decision, even when the plaintiff does not allege that the agency's failure to comply with the FAD was itself based on unlawful discrimination or retaliation; and (2) that defendants are nonetheless entitled to judgment as a matter of law on plaintiff's claims.


From November 1985 through August 1991 -- a period of nearly six years -- defendants employed plaintiff as a Security Officer in the Chicago field office of what was then known as the Bureau of Diplomatic Security (now called the Diplomatic Security Service). See Pl.'s Opp'n Mem at 1-2; Defs.' Stmt. of Undisputed Facts at 1. On August 24, 1991 -- just days before his 53rd birthday*fn2 -- he resigned for reasons that he says included harassment and discrimination by managers on account of his age. See Pl.'s Opp'n Mem at 1-2. He subsequently filed an ADEA claim against defendants that alleged he had been constructively discharged -- a claim that the parties settled in 1994. See id. at 2. Beginning in 1992, and continuing over a period of nearly six years, defendant sought, but was denied, reappointment to his former position at his former pay grade of FP-4. See id.

On January 22, 1998, plaintiff filed a complaint with the State Department's EEO Office in which he charged that defendants' refusal to re-hire him constituted unlawful age discrimination and reprisal for protected activity. Three years later, on January 30, 2001, the EEO Office issued a Final Agency Decision that concluded that defendants had violated the ADEA in their hiring decisions regarding plaintiff and set forth six remedies. See Pl.'s Opp'n Mem at 2; Defs.' Stmt. of Undisputed Facts at 1. On May 22, 2001, the EEO Office amended the FAD to withdraw two of the remedies. See Pl.'s Opp'n Mem at 2; Defs.' Stmt. of Undisputed Facts at 2. Although plaintiff was entitled to appeal the FAD or to reject the agency's judgment and proceed with a separate civil suit, he did neither. Likewise, the State Department acquiesced in the EEO Office's FAD. The FAD, as amended, provided the following four remedies:

I. The Department will expeditiously offer Complainant reappointment to a Foreign Service Diplomatic Security Agent FP-4 position, with back pay from February 1992. Should Complainant decline that offer, his entitlement to backpay and related benefits shall terminate as of the date of his declination.

II. The Department will fully restore any retirement benefits that would have accrued from 1992 to the date that Complainant's reappointment becomes effective.

III. The Department will expunge from Complainant's personnel records any references or documents to the Stipulation of Settlement Agreement executed on June 6, 1994.

IV. The Department will allow the Complainant to inspect his personnel file and review all performance evaluations contained therein.

See Pl.'s Opp'n Mem at 3-4; Defs.' Stmt. of Undisputed Facts at 2-3.

Only the first two remedies are at issue in this civil action, which plaintiff styles as an "enforcement action" under the ADEA. Plaintiff alleges that defendants failed to comply with the terms of the FAD's first remedial order because (1) defendants' offer of reappointment to an FP-4 position was not made "expeditiously," thereby denying him the benefit of an interim promotion to a higher pay grade; (2) the agency's calculation of backpay did not include amounts plaintiff would have received for Administratively Uncontrollable Overtime ("AUO"); and (3) the reappointment offer was improperly conditioned upon plaintiff's attendance at a training session. See Am. Compl. at 5. Plaintiff further alleges that defendants violated the FAD's second remedial order by using an incorrect formula to calculate his retirement pay. See id.

Because of this alleged noncompliance, plaintiff did not accept defendants' offer of reappointment commencing May 20, 2002, and defendants interpreted that as a declination under the terms of the FAD. Consistent with governing regulations, plaintiff filed a complaint with the EEOC on May 16, 2002, seeking enforcement of the FAD. See Defs.' Ex. 20. Following the EEOC's March 21, 2003, denial of his petition for enforcement -- in which the Commission found that DeRose "ha[d] not established that the agency has not complied with [the FAD]," see Am. Compl. Ex. B at 5; Defs.' Stmt. of Undisputed Facts at 4 -- plaintiff commenced this civil action on June 24, 2003, in the United States District Court for the Southern District of New York. See DeRose v. Powell, Docket Sheet, No. 03-CV-4613 (S.D.N.Y.). On February 20, 2004, that court ordered the case transferred here, pursuant to 28 U.S.C. § 1406(a), and defendants thereafter filed their motion to dismiss or, in the alternative, for summary judgment on May 27, 2005.


I. Subject-Matter ...

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