Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Western Area), Agency. Appeal No. 0120130621 Agency No. 1E-837-0008-08 DECISION Complainant filed a timely appeal with this Commission from a final decision (FAD) by the Agency dated October 11, 2012, finding that it was in compliance with the terms of the 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. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Mail Handler at the Agency's Boise Processing and Distribution Center facility in Boise, Idaho. On August 11, 2008, Complainant and the Agency entered into a settlement agreement to resolve an EEO matter. The settlement agreement provided, in pertinent part, that: (6) The parties acknowledge that this Agreement contains the entire agreement between Complainant and Agency and merges and supersedes any and all prior written, verbal, express, or implied agreements and understandings; (8)(d) The Agency will provide Complainant a neutral letter of reference; and (8)(g) Complainant's termination will be expunged from his personnel record. The record shows that the Agency expunged Complainant's termination from his Official Personnel Folder, but the Agency did not purge all of the personnel records maintained on Complainant. Complainant's supervisor (Manager, Distribution Operations (Supervisor), maintained a management file. In response to an employment inquiry regarding Complainant, the Supervisor pulled information from his management file on the Complainant to advise an Office of Personnel Management (OPM) investigator that Complainant had been terminated. The Supervisor acknowledged that he used this management file as the source of the information that he shared regarding Complainant's termination. The Supervisor stated that he released the information because the OPM investigator advised him that Complainant had signed a release that permitted access to his records. The record does not show that the Agency issued Complainant a neutral letter of recommendation in accordance with the Agreement. The Manager averred that the letter was not issued because he was not aware of any request, directed to him, requesting the letter of recommendation. By letter to the Agency dated September 13, 2012, Complainant alleged that the Agency was in breach of the settlement agreement, and requested that the Agency reinstate his complaint. Specifically, Complainant alleged that the Agency failed to provide Complainant with a neutral letter of recommendation and failed to expunge Complainant's termination from all of his personnel records and breached the Agreement when his supervisor told an OPM investigator that Complainant had been terminated. The Agency subsequently issued the letter. Agency's Breach Determination The Agency concluded that it had not breached the Agreement, because it had removed the references of termination from Complainant's Official Personnel Folder. The manager relied on the management file which he maintained when he discussed Complainant's removal with an investigator. The Agency also reasoned that the OPM investigator had a release from Complainant which permitted the release of the requested information. This appeal followed. ANALYSIS 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. Dep't of Def., 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. Dep't 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. U.S. Postal Serv., 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). We find the Agreement was valid and binding. On appeal, Complainant contends that the Agency breached the Agreement, because the Agency did not provide a neutral letter of reference and failed to expunge Complainant's termination from his personnel record. In response, the Agency maintains that it met the terms of the Agreement, because it removed the reference to Complainant's termination from the Official Personnel Record and provided the letter of recommendation, after Complainant brought the matter to the Supervisor's attention. Complainant's supervisor acknowledged that management continued to maintain a management "personnel file" on Complainant, which is inconsistent with paragraph 8(g). In the instant case, we find that the Agency has not met its burden of showing that it "expunged from [Complainant's] personnel records all references to his termination, consistent with the terms of the Agreement. It is not for us to construe the meaning or intention of the Agreement or its terms. Consequently, the plain meaning of provision 8(g) of the settlement agreement supports Complainant's claim. Further, we find that the Agreement provides that it represents the entire agreement and no other terms are controlling. Any subsequent waivers do not override the terms of this Agreement. To the extent that the Agency asserts that a subsequently signed release relieves the Agency from complying with this Agreement, we note that paragraph 6 makes clear that the parties intended to be bound by the terms of the written Agreement, which the parties intended to be the "entire agreement." Therefore, we find that the Agency breached the agreement when the Manager maintained a management personnel record that referenced the termination and failed to give a neutral letter of recommendation. Where this Commission finds that the settlement agreement has been breached, the only two remedies available are specific performance of the terms of the agreement or reinstatement of the underlying EEO complaint at the point processing ceased. See 29 C.F.R. § 1614.504 (c). Complainant specified in his notice of breach and in his statement on appeal which remedy was preferred. He stated that he was seeking the reinstatement of his complaint. If Complainant chooses reinstatement of his complaint, however, he will be required to return any money or benefits which he has already received. We therefore give Complainant the option, in accordance with the ORDER below, of either reinstating his underlying EEO complaint, or specifically enforcing the terms of the Agreement. To the extent that Complainant wishes to address new claims of discrimination and/or retaliation, he should initiate EEO counseling with the Agency as those claims must be addressed in a separate complaint. CONCLUSION We find that the Agency breached the Agreement. Accordingly, we REVERSE the Agency's Breach Decision and REMAND the matter in accordance with the ORDER below. ORDER Within thirty (30) calendar days of the date this decision becomes final, the Agency is ordered to notify Complainant of his option to either return to the status quo prior to the signing of the settlement agreement or to obtain specific performance of the agreement. 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 monetary benefits received pursuant to the agreement. The Agency shall determine its obligations due to 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 specific performance, the Agency shall notify Complainant that the terms of the settlement agreement shall stand and the Agency will abide by all of the terms of the Agreement, including the provision that require neutral references and expungement of all of all references from its personnel records, including any management files, regarding Complainant. If Complainant elects to reinstate his EEO complaint, the Agency shall resume processing the EEO complaint from the point processing ceased. The Agency is ordered to process the remanded claims in accordance with 29 C.F.R. § 1614.108 et seq. The Agency shall acknowledge to the Complainant that it has received the remanded claims within thirty (30) calendar days of the date this decision becomes final. The Agency shall issue to Complainant a copy of the investigative file and also shall notify Complainant of the appropriate rights within one hundred fifty (150) calendar days of the date this decision becomes final, unless the matter is otherwise resolved prior to that time. If the Complainant requests a final decision without a hearing, the Agency shall issue a final decision within sixty (60) days of receipt of Complainant's request. The Agency is further directed to submit a report of compliance, as provided in the statement entitled "Implementation of the Commission's Decision." The report shall include supporting documentation verifying that the corrective action has been implemented. A copy of the Agency's letter of acknowledgment to Complainant and a copy of the notice that transmits the investigative file and notice of rights must be sent to the Compliance Officer as referenced below. ATTORNEY'S FEES (H0610) If Complainant has been represented by an attorney (as defined by 29 C.F.R. § 1614.501(e)(1)(iii)), he/she is entitled to an award of reasonable attorney's fees incurred in the processing of the complaint. 29 C.F.R. § 1614.501(e). The award of attorney's fees shall be paid by the Agency. The attorney shall submit a verified statement of fees to the Agency -- not to the Equal Employment Opportunity Commission, Office of Federal Operations -- within thirty (30) calendar days of this decision becoming final. The Agency shall then process the claim for attorney's fees in accordance with 29 C.F.R. § 1614.501. IMPLEMENTATION OF THE COMMISSION'S DECISION (K0610) 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 77960, Washington, DC 20013. 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 (M0610) 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 tends 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 77960, Washington, DC 20013. 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 (R0610) 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 (Z0610) 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 from the Court that the Court appoint an attorney to represent you and that the Court also 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 with the Court 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 March 19, 2015 __________________ Date 2 0120130621 U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 2 0120130621