Developments at the EEOC: On May 8, 2019, the Equal Employment Opportunity Commission's Office of Federal Operations (OFO) issued its decision in Lidia B. v. Dept. of Veterans Affairs, EEOC Appeal No. 2019001712. Lidia B. involved a settlement agreement where the Agency had agreed to reassign Complainant Lidia B. to a specific office where Complainant was on detail, to be accompanied by a transfer of Complainant's full-time equivalent (FTE), and a recredit of Complainant's leave. After the settlement agreement was signed, the Agency then unilaterally declared the settlement agreement void on grounds of alleged mutual mistake, claiming that there was no position to reassign Complainant to in the receiving office (because the Agency hadn't moved over Complainant's FTE yet). The Agency took back Complainant's leave recredit and unilaterally reinstated Complainant's EEO complaint for processing. Complainant timely petitioned to enforce the breached settlement agreement, and further amended in a new claim while OFO was considering Complainant's Petition for Enforcement. OFO agreed with Complainant, finding that no mutual mistake had occurred, and therefore the Agency was bound to implement the terms of its settlement agreement. OFO accordingly declared the settlement agreement reinstated and ordered the Agency to implement all remedies in the settlement. OFO ordered the Agency to update its claims processing for the reinstated EEO complaint to reflect that the original claim was settled, with processing to continue on Complainant's later-amended claim (which was outside the scope of the settlement agreement). OFO further ordered the Agency to pay Complainant's reasonable attorneys' fees and costs.
Developments at the MSPB: On November 22, 2016, the Merit Systems Protection Board (Board) issued its decision in Elder v. Department of the Air Force, 2016 MPSB 41. The Board reversed the removal of Mr. Elder, finding retaliation for Mr. Elder's efforts to enforce his whistleblower complaint settlement agreement.
Developments at the MSPB: On January 21, 2016, the Merit Systems Protection Board (MSPB) issued its decision in Martin v. U.S. Postal Service, 2016 MSPB 6. Reversing the decision below, the MSPB found that Ms. Martin had been suspended without due process, and ordered the Agency to retroactively reinstate her to duty with back pay.
News from the Federal Circuit: On January 14, 2015, a panel of the U.S. Court of Appeals for the Federal Circuit issued its decision in Higbie v. U.S., __F.3d__, No. 2014-5042. The panel, 2-1, rejected Higbie's claim that violations of the mediation confidentiality agreement from a federal-sector EEO complaint mediation should give rise to breach-of-contract remedies under the Tucker Act.
News from the Federal Circuit: In Cunningham v. United States, No. 2013-5055 (4/9/14), the U.S. Court of Appeals for the Federal Circuit held that the Court of Federal Claims had jurisdiction over breach of a settlement agreement claims, and can award money damages to the claimant, despite other avenues for redress of the breach.
Developments at the MSPB: The MSPB's recent decision, Kitt v. U.S. Navy, 2011 MSPB 82 (September 2, 2011), granting a petition to enforce a settlement agreement, expressly overruled a twenty-year-old decision which had made it difficult to enforce an arguably imprecise settlement agreement.This decision represents a common-sense approach to the interpretation of settlement agreements.
Developments at the OSC: The U.S. Office of Special Counsel (OSC) recently reached a settlement agreement on behalf of whistleblower Ken Downey, a long-time supervisor with the Blaine (Washington) Sector Communication Center of the U.S. Department of Homeland Security's Customs and Border Protection (CBP). OSC investigations revealed that CBP illegally retaliated against Mr. Downey for making a series of whistleblower disclosures of agency misconduct by proposing to fire Mr. Downey, suspending him, transferring him indefinitely to another border patrol station, issuing him a reprimand, removing his supervisory duties, and failing to promote him despite a favorable recommendation from his supervisor.
Developments at the EEOC: The EEOC's recently released FY 2010 Annual Report confirms that Federal Employees continue to experience discrimination in the workplace. The 16,480 individuals who filed discrimination claims in FY 2010 comprise a tiny proportion of the Federal Workforce (.3 percent of the overall Federal workforce, and .7 percent of the Executive Branch workforce), but the trend is still on the rise. According to the Report, "The number of complaints filed increased by 3.8% over the previous year and there was a 4.1% increase in the number of individuals who filed complaints over the same period."