By Deryn Sumner
As we’ve talked about a few times in this space, in August 2015 the EEOC released a revised version of its Management Directive 110 (MD-110), which relates to federal sector EEO complaints processing. One change to MD-110 that not everyone has caught up to yet is the requirement for agencies to identify a settlement authority that is not named as a responsible management official or is otherwise directly involved in the case. The language in MD-110, Chapter 1, Section V. (emphasis added) states:
The agency must designate an individual to attend settlement discussions convened by a Commission Administrative Judge or to participate in EEO alternative dispute resolution (ADR) attempts. Agencies should include an official with settlement authority during all settlement discussions and at all EEO ADR meetings (Note: The agency’s official with settlement authority should not be the responsible management official (RMO) or agency official directly involved in the case. This is not a general prohibition on those officials from being present at appropriate settlement discussions and participating, only that they are not the officials with the settlement authority.) The probability of achieving resolution of a dispute improves significantly if the designated agency official has the authority to agree immediately to a resolution reached between the parties. If an official with settlement authority is not present at the settlement or EEO ADR negotiations, such official must be immediately accessible to the agency representative during settlement discussions or EEO ADR.
The Commission is clearly stating here that identified RMOs should not be the ones coming to the table with authority to try to settle cases. That makes sense and is something I recommended prior to the release of the revised MD-110. Managers who have been identified as alleged discriminating officials are too close to the situation to view it objectively, to consider the employee’s requests for settlement, and to respond in a way that addresses all the reasons why we here at FELTG teach that agencies should be open to settlement discussions, even if it is the agency’s position that it did not do anything wrong. So make sure you are up to speed on the revised directive and identify someone outside of the RMOs and those directly involved to serve as the settlement authority.
And as a reminder, it is imperative that the individual identified by the agency to have authority to resolve complaints actually have that authority. The Department of the Air Force recently learned that lesson the hard way. Luann L. v. USAF, EEOC No. 0120161629 (June 23, 2016). There, the parties entered into a settlement agreement wherein the agency agreed to, in part, process paperwork to reflect that the complainant was detailed to unclassified duties at the GS-14 level for about 5 days and to thereafter temporarily promote her to a GS-14 position “until such time as the vacancy is filled or the Complainant is no longer performing the duties at which time the Complainant will convert to her previous position and pay grade.”
After the complainant filed a breach of the agreement, the agency issued a final decision finding that the settlement authority who attended the mediation did not actually have authority and therefore was not authorized to bind the agency to these terms. The Commission did not find that argument to be persuasive and noted that an agency must present evidence to prove that the signatory to the agreement actually lacked the authority to agree to its terms. Here, as the agency did not present evidence that the settlement authority was not authorized to bind the agency to the terms of the agreement, the Commission remanded the matter to the agency for specific enforcement of the settlement agreement. Sumner@FELTG.com