DARYL L. CHRISTENSEN, COMPLAINANT,
v.
MICHAEL CHERTOFF, SECRETARY, DEPARTMENT OF HOMELAND SECURITY, AGENCY.
Appeal No. 0120081918
Agency No. HS06ICE001036
   
JURISDICTION
 
Complainant filed a timely appeal with this Commission from a final decision (FAD) by the agency dated February 22, 2008, finding that it was in compliance with the terms of the January 9, 2008 settlement agreement into which the parties entered. See 29 C.F.R. § 1614.402; 29 C.F.R. § 1614.504(b); and 29 C.F.R. § 1614.405.
 
The settlement agreement provided, in pertinent part, that the agency would:
(1) Transfer the complainant at no cost to the agency within 30 days to the Yuma Office of the Assistant to the Special Agent in Charge.
 
On or about January 22, 2008, complainant notified the agency that he believed that the agency was in breach of the settlement agreement, and requested that the agency specifically implement its terms. Specifically, complainant alleged that the agency refused to transfer him to the Yuma office. In its February 22, 2008 FAD, the agency concluded that it was unable to comply with the Agreement because of a standing order barring complainant from the Yuma office due to "various EEOC complaints against you by several female employees." The agency further maintains that the agency representatives who negotiated the Agreement with complainant were unaware of the standing order and that complainant failed to notify them of the order despite being aware of it. The agency contends that complainant was offered a transfer to the Phoenix office instead. On appeal, complainant maintains that agency officials were aware of the order at the time the Agreement was signed.
 
EEOC Regulation 29 C.F.R. § 1614.504(a) provides that any settlement agreement knowingly and voluntarily agreed to by the parties, reached at any stage of the complaint process, shall be binding on both parties. The Commission has held that a settlement agreement constitutes a contract between the employee and the agency, to which ordinary rules of contract construction apply. See Herrington v. Department of Defense, EEOC Request No. 05960032 (December 9, 1996). The Commission has further held that it is the intent of the parties as expressed in the contract, not some unexpressed intention, that controls the contract's construction. Eggleston v. Department of Veterans Affairs, EEOC Request No. 05900795 (August 23, 1990). In ascertaining the intent of the parties with regard to the terms of a settlement agreement, the Commission has generally relied on the plain meaning rule. See Hyon O v. United States Postal Service, EEOC Request No. 05910787 (December 2, 1991). This rule states that if the writing appears to be plain and unambiguous on its face, its meaning must be determined from the four corners of the instrument without resort to extrinsic evidence of any nature. See Montgomery Elevator Co. v. Building Eng'g Servs. Co., 730 F.2d 377 (5th Cir. 1984).
 
In the instant case, we find that the agency breached the Agreement. While the agency may be unable to comply due to the standing order barring complainant from the Yuma facility, the agency concedes that complainant has not been transferred to Yuma within the 30-day timeframe specified in the Agreement. Therefore, we find that complainant has proven by a preponderance of the evidence that the agency breached the Agreement. To remedy a finding of breach, the Commission may order reinstatement of the underlying complaint, or enforcement of the Agreement's terms. See 29 C.F.R. § 1614.504(c). We note however, that the agency is unable to comply with the Agreement's terms.
 
Should complainant's complaint be reinstated for further processing, then complainant and the agency would be returned to the status quo at the time that the parties entered into the settlement agreement, which would require that complainant return any benefits received pursuant to the Agreement. See, e.g., Armour v. Department of Defense, EEOC Appeal No. 01965593 (June 24, 1997); Komiskey v. Department of the Army, EEOC Appeal No. 01955696 (Sept. 5, 1996). Specifically, the Agreement states that complainant shall be reimbursed for 32 hours of sick leave, $200 in medical costs, and $500 in legal costs. If complainant has already received these benefits, and if the case is reinstated, complainant would have to return such benefits. We therefore give complainant the option, in accordance with the Order below, of either returning the benefits conferred pursuant to the Agreement and reinstating the complaint, or keeping the benefits conferred pursuant to the Agreement and abiding by the terms of the amended agreement, minus the requirement of the transfer to Yuma.
  
ORDER
 
The agency is ordered to notify complainant of his option to return to the status quo prior to the signing of the settlement agreement. The agency shall so notify complainant within thirty (30) calendar days of the date this decision becomes final. The agency shall also notify complainant that he has fifteen (15) calendar days from the date of his receipt of the agency's notice within which to notify the agency either that he wishes to return to the status quo prior to the signing of the agreement or that he wishes to allow the terms of the agreement to stand. Complainant shall be notified that in order to return to the status quo ante, he must return any benefits received pursuant to the agreement. The agency shall determine any payment due complainant, or return of consideration or benefits due from complainant, within thirty (30) calendar days of the date this decision becomes final, and shall include such information in the notice to complainant.
 
If complainant elects to return to the status quo ante and he returns any monies or benefits owing to the agency, as specified above, the agency shall resume processing complainant's complaint from the point processing ceased pursuant to 29 C.F.R. § 1614.108 et seq. If complainant elects not to return to the status quo ante, i.e., not to return any consideration owing the agency, the agency shall notify complainant that the terms of the settlement agreement shall stand, minus the requirement of the transfer to Yuma.
  
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0408)
 
Compliance with the Commission's corrective action is mandatory. The agency shall submit its compliance report within thirty (30) calendar days of the completion of all ordered corrective action. The report shall be submitted to the Compliance Officer, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 19848, Washington, D.C. 20036. The agency's report must contain supporting documentation, and the agency must send a copy of all submissions to the complainant. If the agency does not comply with the Commission's order, the complainant may petition the Commission for enforcement of the order. 29 C.F.R. § 1614.503(a). The complainant also has the right to file a civil action to enforce compliance with the Commission's order prior to or following an administrative petition for enforcement. See 29 C.F.R. §§ 1614.407, 1614.408, and 29 C.F.R. § 1614.503(g). Alternatively, the complainant has the right to file a civil action on the underlying complaint in accordance with the paragraph below entitled "Right to File A Civil Action." 29 C.F.R. §§ 1614.407 and 1614.408. A civil action for enforcement or a civil action on the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999). If the complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. § 1614.409.
  
STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0408)
 
The Commission may, in its discretion, reconsider the decision in this case if the complainant or the agency submits a written request containing arguments or evidence which tend to establish that:
1. The appellate decision involved a clearly erroneous interpretation of material fact or law; or
 
2. The appellate decision will have a substantial impact on the policies, practices, or operations of the agency.
 
 
Requests to reconsider, with supporting statement or brief, must be filed with the Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision or within twenty (20) calendar days of receipt of another party's timely request for reconsideration. See 29 C.F.R. § 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 19848, Washington, D.C. 20036. In the absence of a legible postmark, the request to reconsider shall be deemed timely filed if it is received by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. The request or opposition must also include proof of service on the Other party.
 
Failure to file within the time period will result in dismissal of your request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted with your request for reconsideration. The Commission will consider requests for reconsideration filed after the deadline only in very limited circumstances. See 29 C.F.R. § 1614.604(c).
  
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (R0408)
 
This is a decision requiring the agency to continue its administrative processing of your complaint. However, if you wish to file a civil action, you have the right to file such action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. In the alternative, you may file a civil action after one hundred and eighty (180) calendar days of the date you filed your complaint with the agency, or filed your appeal with the Commission. If you file a civil action, you must name as the defendant in the complaint the person who is the official agency head or department head, identifying that person by his or her full name and official title. Failure to do so may result in the dismissal of your case in court. "Agency" or "department" means the national organization, and not the local office, facility or department in which you work. Filing a civil action will terminate the administrative processing of your complaint.
  
RIGHT TO REQUEST COUNSEL (Z0408)
 
If you decide to file a civil action, and if you do not have or cannot afford the services of an attorney, you may request that the Court appoint an attorney to represent you and that the Court permit you to file the action without payment of fees, costs, or other security. See Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq.; the Rehabilitation Act of 1973. as amended, 29 U.S.C. §§ 791, 794(c). The grant or denial of the request is within the sole discretion of the Court. Filing a request for an attorney does not extend your time in which to file a civil action. Both the request and the civil action must be filed within the time limits as stated in the paragraph above ("Right to File A Civil Action").
 
 
FOR THE COMMISSION:
 
Carlton M. Hadden
Director
Office of Federal Operations

September 17, 2008