EEOC Administrative Judge’s order on retirement contributions overturned. Complainant filed an Equal Employment Opportunity (EEO) complaint alleging discrimination based on race, sex, and age. Complainant was not selected for a Supervisory Store Assistant position at Lackland Air Force Base. Following the initial investigation, Complainant requested a hearing in which the Administrative Judge (AJ) found that Complainant had been subjected to discrimination on the bases alleged. Among the remedies ordered, the Agency was ordered to pay in to Complainant’s Thrift Savings Plan (TSP) account to compensate her for any Agency matching contributions she missed out on because of these actions. Following the AJ’s decision, the Agency issued a final order adopting all of the AJ’s decision except for the order regarding the TSP, and filed an appeal.

On appeal, the EEOC’s Office of Federal Operations (OFO) found that Agency employees do not participate in the Federal Employee Retirement System because they are not “employees” as defined in that section. Because of that, Complainant was not entitled to participate in the TSP, which made such remedy inappropriate. The OFO reversed the AJ’s TSP order in favor of the Agency.

Sharon S. v. Dep’t of Defense, EEOC Appeal No. 2020002362 (Oct. 1, 2020)

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