Breach of EEO Settlement Agreements

Here is the situation that some federal employees find themselves in: the employee has previously brought a claim of discrimination and retaliation against the agency that they were working for, and the agency settled that claim through a settlement agreement. That settlement agreement included that the agency was going to remove disciplinary documents from the employees file. Years later, the employee applies for a new job and is mysteriously denied that job. The employee thinks that the agency failed live up to its commitments under the settlement agreement. What can an employee do?

This is the situation that a federal employee recently found himself in. In Tommy R. v. McDonald (Veterans’ Affairs), Appeal No. 0120162117 (EEOC 2016), Tommy suspected that the VA was in breach of its agreement with him to remove disciplinary documents from his file. He brought a claim for breach of the agreement directly with the EEOC’s Office of Federal Operations in Washington, D.C. He claimed that he was frequently being passed over in job applications, and this was likely because of the old disciplinary documents in his file. He did not, however, get a copy of his personnel file to see whether the documentation at issue had in fact been removed.

Lessons about getting the Agency to comply with a settlement agreement

The EEOC held that Tommy had not proven that the agency was in breach of its obligations under its settlement agreement with him. This case has a number of lessons that any Federal employee who has an active EEO settlement agreement with a federal agency should know.

• Find out whether there has actually been a breach. When an employee believes that there’s been a breach of the settlement agreement, there may be ways of finding out whether the agreement has actually been breached. For Tommy, he could have pulled a copy of his personnel file to check whether the discipline had actually been removed. By not doing this, he had no evidence that the agency had failed to live up to its commitment to remove the disciplinary documents from his file. Employees who believe that there is been a breach should immediately try to obtain evidence, if possible, that they can use to show a breach.
• File with the EEO Office Director at the agency first. Before an employee can bring a claim a breach of a settlement agreement to the EEOC, the employee must first seek compliance through the agency’s EEO Office Director. In Tommy’s case, he failed to contact EEO Office Director first before going to the EEOC. The EEOC’s Office of Federal Operations only deals with appeals after the federal agency has had an opportunity to review the case. An Employee cannot file first with the EEOC’s Office of Federal Operations. The EEOC can dismiss a case for failing to file with the EEO office director first.
• File with the EEO Office Director within 30 days. A federal employee only has 30 days after he learns of the breach of his settlement agreement to notify the EEO office director that the agency is in breach of its agreement. Even if the employee only suspects that there has been a breach of the agreement, the employee should still file within 30 days. Otherwise, the EEOC will not be able to hear any appeals if the agency continues not to comply with its obligations under the settlement agreement.
• Show how the agency breached its agreement. The EEOC is able to require the agency to live up to its commitment under the settlement agreement. However, the employee must show that the agency has actually failed to live up to its commitment. In Tommy’s case, he put two and two together and realized that when he applied for jobs within the VA in other locations, the hiring manager may have been relying on the documents that should have been removed from his personnel file. The problem for Tommy was that he could not prove based on his speculation that the agency had in fact failed to live up to the requirements under the agreement without evidence. He could have obtained this evidence by asking for his personnel file. The EEOC therefore could not conclude that the agency had breached its agreement with him, and dismissed the case.

This case shows shows how difficult it can be for employees to require federal agencies to comply with settlement agreements in EEO cases. The EEOC regulations require that employees jump through a number of procedural hoops and present legally sufficient evidence before the EEOC will act to require the agency to comply with the settlement agreement.

Having a lawyer on your side who is experienced in handling federal EEO matters greatly increases the likelihood that the EEOC will require the agency to comply with its obligations under settlement agreements. If you believe that a federal agency has breached its settlement agreement with you, you should act quickly to make sure that you meet the strict deadlines for filing with the agency and the EEOC.