Federal Employee Issues: Breach Of A Settlement Agreement
This guide provides an overview of what actions may be taken when a federal government agency violates a settlement agreement resolving an Equal Employment Opportunity (EEO) complaint and is applicable to federal government applicants and employees.
OverviewAfter an applicant or employee (referred to as a *complainant*) files an EEO complaint with the applicable federal government agency, many complaints are resolved between the complainant and the agency through a settlement agreement. Although many possible terms may be included in a settlement agreement, the purpose of the agreement is to resolve the complainant*s EEO complaint in exchange for the agency providing the complainant with something of value or benefit. The regulations of the Equal Employment Opportunity Commission (*EEOC* or *Commission*) state that a settlement agreement must be in writing and signed by both the complainant and by a representative of the agency. See 29 C.F.R. 1614.603. However, on occasion, an agency will not provide the complainant with all benefits promised in the settlement agreement. Where this occurs, it is referred to as a breach of the settlement agreement.
Filing An Allegation Of Breach Of A Settlement Agreement And Petition For EnforcementThe EEOC*s regulations provide that when a complainant believes an agency has breached a settlement agreement, he or she is required to contact the agency within 30 days of when he or she knew or should have known of the breach. 29 C.F.R. 1614.504(a). Generally, the settlement agreement will state who the complainant is required to contact in the event he or she raises an allegation of breach. At the time he or she raises a breach allegation, the complainant also should inform the agency whether he or she wants the agency to comply with the terms of the settlement agreement or whether he or she would like the EEO complaint to be reinstated. 29 C.F.R. 1614.504(a). The agency then has 35 days to respond in writing to the complainant in response to the allegation of breach. 29 C.F.R. 1614.504(b).
If the agency does not respond to the allegation of breach within 35 days, or if the agency does not resolve the allegation to the complainant*s satisfaction within 35 days, the complainant can file a Petition for Enforcement (PFE) with the EEOC. 29 C.F.R. 1614.504(b). The complainant must file the PFE within 30 days of receipt of the agency*s determination. 29 C.F.R. 1614.504(b). The agency has the opportunity to respond to the complainant*s PFE within 30 days of receiving a copy of the PFE. The Commission then will decide whether the agency has breached the settlement agreement as the complainant alleges.
Filing A New EEO ComplaintOn occasion, a complainant may believe that an agency purposefully breached a settlement agreement in retaliation for filing the underlying EEO complaint or because of the complainant*s membership in a different protected class. Where this occurs, a complainant can file a new EEO complaint in addition to filing an allegation of breach. See 29 C.F.R. * 1614.504(c) (*[a]llegations that subsequent acts of discrimination violate a settlement agreement shall be processed as separate complaints.*). Decisions from the Commission confirm that where a complainant alleges a subsequent act of discrimination also constitutes a breach of a settlement agreement, the allegation of discrimination should be processed as a new EEO complaint. See, e.g., Hernandez v. Dep*t of the Army, EEOC App. No. 01955623 (June 24, 1996); Espina v. U.S. Postal Serv., EEOC App. No. 01965177 (Apr. 28, 1997).
ConclusionEach situation is different. As such, this is not a question that can be answered without evaluating each case individually. Employment attorneys experienced in representing federal employees, such as those as The Wick Law Office, can provide advice to assist you with this determination.