EDDIE W. ARMOUR, APPELLANT, v. WILLIAM S. COHEN, SECRETARY, DEPARTMENT OF DEFENSE, (OFFICE OF DEPENDENTS EDUCATION), AGENCY. Appeal No. 01965593 Appellant appeals to the Commission for a determination as to whether the agency has complied with the terms of a settlement agreement which the parties entered into. See 29 C.F.R. §1614.504(b); EEOC Order No. 960, as amended. ISSUE PRESENTED The issue on appeal is whether the agency breached the terms of a settlement agreement. BACKGROUND The record reveals that on September 3, 1993, appellant, at that time an Automation Assistant, GS-6, at the Frankfurt Middle School, Frankfurt, Germany,1 filed a formal EEO complaint wherein he alleged that he had been discriminated against on the bases of his sex (male), age (49), race (black) and color (black) with regard to the performance rating that he received for the rating period ending May 1, 1993. In March - April 1995, the agency and appellant entered into a settlement agreement that provided in pertinent part: The Agency will assign a hard copy performance appraisal of "Commendable" to the Complainant for school year 1994-95. The rating in the Agency's file will be whatever rating is officially assigned to the Complainant. If the Complainant receives an official rating that is less than the hard copy "Commendable" rating, the Agency shall not disclose that fact to any person outside the [Agency] including a hiring authority from another Federal agency. The Agency will assist the Complainant in enrolling in the Department of Defense Priority Placement Program (PPP) at the priority level for which he is qualified and as close as possible to the Atlanta, Georgia area. In addition, the Agency will offer their good faith counsel to [appellant] on how best to otherwise enhance his chances of finding a position through PPP. The Agency will pay the Complainant attorney's fees of $1,000.00. By letter dated July 15, 1996, appellant notified the Commission that the agency was not in compliance with the settlement agreement. Appellant maintained that the agency had not assisted him in registering for the Priority Placement Program. According to appellant, he signed the agreement with the understanding that he would be eligible for enrollment in the PPP and that the agency would initiate enrollment procedures. Appellant stated that an EEO Official assured him before he signed the agreement that he would be assisted in being placed in PPP Category II, and that a subsequent upgrade to Category 1 was likely due to his wife's medical condition.2 Appellant claimed that after he signed the settlement agreement, the agency's Personnel Office insisted that he was only eligible for PPP Category III. According to appellant, placement in Category III is not adequate for securing a job. Appellant argued that the agency had not provided him with good faith counsel as specified in the agreement. Appellant requested that the agency be required to comply with the agreement and pay compensatory damages for mental anguish, expenses, and other related costs suffered due to the breach of the agreement. By letter dated August 26, 1996, the Deputy Chief, Personnel Center, informed appellant that the agency was only obligated to assist appellant in enrolling at the priority level for which he qualified. The Deputy Chief stated that the agency officials involved in the preparation of the settlement agreement maintained that no verbal assurances were provided beyond the terms of the agreement. On August 28, 1996, the agency forwarded to appellant a letter from the Deputy Chief for Operations, Civilian Assistance & Re-Employment Division, stating that there is no record of anyone in the PPP Coordinator structure having approved or been aware of the settlement agreement. It was noted that the first clause of the agreement suggested that appellant had a performance problem. It was further stated that persons whose performance or conduct is in question are not eligible to register in the PPP. According to the Deputy Chief for Operations, had a PPP Coordinator been consulted, the issue of appellant's performance would have had to be resolved. The Deputy Chief for Operations asserted that the PPP is not available for use in settling complaints and appeals, and that there can be no registration for the PPP if the requisite criteria are not met. By letter dated September 4, 1996, appellant informed the agency that he believed it had failed to deal in good faith by not providing him with timely advice regarding the PPP; and by not telling him until 14 months after the agreement was signed that he was expected to make a request for enrollment in the PPP. ANALYSIS AND FINDINGS 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. If the complainant believes that the agency has failed to comply with the terms of a settlement agreement or final decision, the complainant shall notify the EEO Director, in writing, of the alleged noncompliance within 30 days of when the complainant knew or should have known of the alleged noncompliance. The complainant may request that the terms of the agreement be specifically implemented, or, alternatively, that the complaint be reinstated for further processing from the point processing ceased. Settlement agreements are contracts between the appellant and the agency. It is the intent of the parties as expressed in the contract, and not some unexpressed intention, that controls the contract's construction. Eggleston v. Department of Veterans Affairs, EEOC Request No. 05900795 (August 23, 1990). In addition, the Commission generally follows the plain meaning rule, which 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). Under the general principles of contract law, a party may avoid an otherwise valid contract because of a mistake. One who attacks a settlement agreement bears the burden of showing fraud or mutual mistake. See Asberry v. United States Postal Service, 692 F.2d 1378, 1380 (Fed. Cir. 1982). The party attempting to avoid the contract must prove that: (1) the mistake related to a basic assumption upon which the contract was made; (2) the mistake had a material effect upon the agreement; and (3) the mistaken parties did not assume or legally bear the risk as to the mistaken fact. Restatement (Second) of Contracts 152; see also Skyline Corp. v. NLRB, 613 F.2d 1328 (5th Cir. 1980). The record shows that both parties voluntarily entered into the agreement based on an assumption that the agency would be able to assist appellant in enrolling in the Priority Placement Program at the priority level for which he was qualified and as close as possible to the Atlanta, Georgia area. The agreement stated that the agency would offer its good faith counsel to appellant on how best to otherwise enhance his chances of finding a position through the PPP. These provisions were material to the agreement because they were intended to result in appellant having an opportunity to be placed in a position after his previous position at the Frankfurt Middle School was abolished on May 15, 1995. However, the agency office responsible for implementation of the PPP stated that the PPP is not available for use in settling complaints and appeals. The Civilian Assistance & Re-Employment Division noted that it neither approved nor was made aware of the settlement agreement. It was further noted that had a PPP Coordinator been consulted, the issue of appellant's performance would have had to be resolved. Based on the record, it appears that the parties made a mutual mistake in the formation of the settlement agreement. The Commission finds that both parties acted under a mutual mistake that the Priority Placement Program could be utilized for purposes of the settlement agreement. Therefore, we find that the settlement agreement is not enforceable because it was based on a mutual mistake of a material fact. Accordingly, we REMAND appellant's allegations for further processing. In so doing, we note that appellant may have received some of the benefits promised in the agreement, benefits which must be returned if appellant wishes to reinstate his complaint for further processing. We therefore give appellant 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. ORDER The agency is ORDERED to notify appellant of his option to return to the status quo prior to the signing of the settlement agreement. The agency shall so notify appellant within thirty (30) calendar days of the date this decision becomes final. The agency shall also notify appellant 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 as amended, i.e., without the PPP provision. Appellant shall be notified that in order to return to the status quo ante, he must return any monies or benefits received pursuant to the agreement. The agency shall determine any payment due appellant, or return of consideration or benefits due from appellant, within thirty (30) calendar days of the date this decision becomes final, and shall include such information in the notice to appellant. If appellant 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 appellant's complaint from the point processing ceased pursuant to 29 C.F.R. §1614.108 et seq. If appellant elects not to return to the status quo ante, i.e., not to return any consideration owing the agency, the agency shall notify appellant that the terms of the settlement agreement, with the exception of paragraph 2, shall stand. A copy of the agency's notice to appellant regarding his options, including the determination of consideration due or owing, as well as a copy of either the correspondence reinstating the complaint for processing or the correspondence notifying appellant that the terms of the agreement will stand, must be sent to the Compliance Officer, as referenced below. IMPLEMENTATION OF THE COMMISSION'S DECISION (K0595) 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 appellant. If the agency does not comply with the Commission's order, the appellant may petition the Commission for enforcement of the order. 29 C.F.R. §1614.503 (a). The appellant 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. §§1614.408, 1614.409, and 1614.503 (g). Alternatively, the appellant 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. §§1614.408 and 1614.409. 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) (Supp. V 1993). If the appellant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. §1614.410. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0795) The Commission may, in its discretion, reconsider the decision in this case if the appellant or the agency submits a written request containing arguments or evidence which tend to establish that: 1. New and material evidence is available that was not readily available when the previous decision was issued; or 2. The previous decision involved an erroneous interpretation of law, regulation or material fact, or misapplication of established policy; or 3. The decision is of such exceptional nature as to have substantial precedential implications. Requests to reconsider, with supporting arguments or evidence, MUST BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive a timely request to reconsider filed by another party. Any argument in opposition to the request to reconsider or cross request to reconsider MUST be submitted to the Commission and to the requesting party WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request to reconsider. See 29 C.F.R. §1614.407. All requests and arguments must bear proof of postmark and 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 filed on the date it is received by the Commission. Failure to file within the time period will result in dismissal of your request for reconsideration as untimely. If extenuating circumstances have prevented the timely filing of a request for reconsideration, a written statement setting forth the circumstances which caused the delay and 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). RIGHT TO FILE A CIVIL ACTION (R0993) 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. It is the position of the Commission that you have the right to file a civil action in an appropriate United States District Court WITHIN NINETY (90) CALENDAR DAYS from the date that you receive this decision. You should be aware, however, that courts in some jurisdictions have interpreted the Civil Rights Act of 1991 in a manner suggesting that a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the date that you receive this decision. To ensure that your civil action is considered timely, you are advised to file it WITHIN THIRTY (30) CALENDAR DAYS from the date that you receive this decision or to consult an attorney concerning the applicable time period in the jurisdiction in which your action would be filed. 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 (Z1092) 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: Ronnie Blumenthal Director Office of Federal Operations Footnotes 1. 1. Appellant's position was abolished pursuant to the school's closing on May 15, 1995. Appellant subsequently received one year's leave without pay commencing on September 15, 1995, for the purpose of helping his ailing wife settle in the Atlanta, Georgia area. In August 1996, an additional year of leave without pay was granted to appellant so that his health insurance coverage would remain in effect. 2. Appellant states that his wife suffers from hepatitis C and that she will eventually require a liver transplant.