U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Humberto P.,1 Complainant, v. John F. Kelly, Secretary, Department of Homeland Security (Immigration and Customs Enforcement), Agency. Appeal No. 0120152191 Agency Nos. HS-10-ICE-004424, HS-ICE-00191-2011 DECISION Complainant filed a timely appeal with this Commission from a final decision (FAD) by the Agency dated May 29, 2013, 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. For the following reasons, we VACATE the Agency's final decision finding that it was in compliance with the terms of the settlement agreement. ISSUE PRESENTED The issue presented is whether the preponderance of the evidence in the record establishes that the Agency was in compliance with the terms of the settlement agreement. BACKGROUND At the time of events giving rise to these complaints, Complainant worked as a Criminal Investigator at the Agency's Office of Investigations facility in Deming, New Mexico. Believing that the Agency subjected him to unlawful discrimination, Complainant contacted an Agency EEO Counselor to initiate the EEO complaint process regarding a removal action. On May 4, 2011, Complainant and the Agency entered into a settlement agreement to resolve the matter. The settlement agreement provided, in pertinent part, that: (4a) The Agency agrees to cancel the removal action effective March 4, 2010, and replace it with a resignation "for personal reasons" effective March 4, 2010. In cancelling the removal action, the Agency agrees to purge all documentation concerning the removal action from the Complainant's official personnel folder. In the event anything else relating to the removal action should arise in any other files, it will likewise be destroyed. The Agency agrees to complete the actions required of this provision no later than thirty (30) days from the effective date of this settlement agreement. (b) The Agency agrees to issue a Standard Form 50 (SF-50) indicating Employee's voluntary resignation consistent with the reasons slated by the Employee in the SF-50 identified above. (c) In response to appropriate inquiries about the Complainant from prospective employers, Complainant is obligated to refer prospective employers to [the then] Administrative Officer, or her successor at [her Agency address and phone number]. Complainant understands that this phone number and address may change in the future and therefore assumes responsibility for referring prospective employers to the appropriate phone number and address for [the Administrative Officer]. The information provided in the reference will be linked to dates of employment, rate of pay and position held. No additional information shall be furnished unless the Complainant authorizes the release or as required by law, court order, or government regulation. The Employee [sic] expressly acknowledges that the Agency, it [sic] agents and its current and former employees and officers are not liable for any disclosure to any inquiring employer regarding the Employee's [sic] employment with the Agency to the extent such disclosure is limited to the disclosure permitted by this paragraph. By letter to the Agency dated February 22, 2013, Complainant alleged 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 failed to refer inquiries about his employment to the Administrative Officer (AO) identified in the Agreement. Complainant further alleged that two supervisors in the Agency's Deming, New Mexico, office "did not abide by the Agreement terms to respond truthfully or limit their information to terms outlined" in the Agreement. In its May 29, 2013 FAD, the Agency concluded that it was not in breach of the Agreement. More specifically, the Agency found that Complainant did not identify any prospective employer to whom improper information was provided and noted that the information was disclosed during a background investigation conducted by the Federal Investigative Services (FIS) of the Office of Personnel Management (OPM). The Agency further concluded that OPM was not a prospective employer and hence the background investigation was outside the scope of the Agreement. Complainant appealed the Agency's decision to the Commission. On appeal, the Commission agreed with the Agency and issued a decision finding no breach. EEOC Appeal No. 0120132763 (Dec. 19, 2013). Complainant timely requested that the Commission reconsider its decision. On request for reconsideration, we reopened the matter on our own matter and vacated our previous appellate decision, remanding the matter for a supplemental investigation. EEOC Request No. 0520140168 (June 13, 2014). According to the record, OPM contacted a Mission Support Specialist (MSS) in the Office of Human Resources located in El Paso, Texas, while conducting a background investigation on behalf of Complainant's prospective employer. MSS, who had no knowledge of the agreement, referred OPM to Complainant's former supervisors located in Deming, New Mexico. These supervisors divulged derogatory information to OPM about Complainant in a manner not consistent with the Agreement. On request for reconsideration, we determined that there was not enough information in the evidentiary record to determine whether MSS was an appropriate person to be contacted by prospective employers or to determine what individual, if any, referred OPM to MSS in the first place. We therefore found that there was insufficient information in the record to determine whether Complainant failed to refer OPM to the AO as required by the Agreement or whether there was a breach of the Agreement on the part of the Agency. Accordingly, we ordered the Agency to supplement the record. The supplemental investigation revealed that AO was out of the El Paso, Texas, office on a detail when OPM contacted her and that MSS, who answered the OPM investigator's call, was unaware of the Agreement when she referred the investigator to Complainant's former supervisors in Deming, New Mexico. Complainant's former supervisors were also unaware of the terms of the Agreement. CONTENTIONS ON APPEAL Neither Complainant nor the Agency made any additional contentions on appeal following the supplemental investigation. 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). Following a review of the record, we find the Agency to have breached the Agreement. We disagree that the OPM investigation was outside the scope of the Agreement because OPM was not Complainant's prospective employer. An OPM investigator was conducting a background check on behalf of a prospective employer. Therefore, we find that the OPM inquiry falls squarely within the scope of the Agreement. Complainant properly referred OPM to AO in accordance with the Agreement, but AO was out of the office on a detail when OPM contacted her. According to the record, AO made no arrangements while on detail for someone to provide the neutral confirmation of Complainant's employment in order to comply with the terms of the Agreement. In AO's absence, MSS, who was evidently unaware of the settlement agreement, inappropriately referred the OPM investigator to Complainant's former supervisors. Accordingly, we find that the Agency breached the settlement agreement. Where we find a breach, the Commission has two options to remedy the situation: 1) reinstate the complaint or 2) order specific performance. We note, however, that if a complaint is reinstated for further processing, the parties must be returned to the status quo at the time that the parties entered into the settlement agreement. This would require that Complainant return or forego any benefits received pursuant to the settlement agreement. See, e.g., Armour v. Dep't of Defense, EEOC Appeal No. 01965593 (June 24, 1997). The Agreement included a provision that Complainant's removal be changed on all official documents to reflect a voluntary resignation for personal reasons. Should his complaints be reinstated, Complainant should understand that this provision would no longer apply and the removal action would be reinstated. CONCLUSION Finding that the Agency breached the settlement agreement, we VACATE the Agency's final decision, REMANDING Complainant's complaints for further processing in accordance with the ORDER below. On remand, Complainant shall be advised that, in order to reinstate his complaint, a condition precedent is the return of any benefits received through the execution of the provisions of the Agreement, which in this case would mean that the Agency's records would no longer reflect Complainant's resignation for personal reasons. In view of this requirement, we give Complainant the option, in accordance with the ORDER below, of either returning the benefits conferred pursuant to the Agreement and reinstating the complaints, or keeping the benefits conferred pursuant to the Agreement and having the Agreement specifically enforced. ORDER The Agency is ORDERED to notify Complainant of the option to return to the status quo prior to the signing of the agreement and having his complaints reinstated, or having the terms of the Agreement specifically enforced. The Agency shall notify Complainant within fifteen (15) calendar days of the date this decision is issued. 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 of his choice. Complainant shall be notified that in order to return to the status quo ante, he must return any benefits received pursuant to the settlement agreement. If Complainant elects to return to the status quo ante and returns any benefits owing to the Agency, as specified above, the Agency shall resume processing the complaints from the point processing ceased. 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 will be specifically enforced. 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. IMPLEMENTATION OF THE COMMISSION'S DECISION (K0617) 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 in the digital format required by the Commission, and submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). 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 (M0617) 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. A party shall have twenty (20) calendar days of receipt of another party's timely request for reconsideration in which to submit a brief or statement in opposition. See 29 C.F.R. § 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 § VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. Complainant's request may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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 agency's request must be submitted in digital format via the EEOC's Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). 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 (Z0815) If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits). FOR THE COMMISSION: ______________________________ Carlton M. Hadden's signature Carlton M. Hadden, Director Office of Federal Operations 8-9-2017 __________________ Date 1 This case has been randomly assigned a pseudonym which will replace Complainant's name when the decision is published to non-parties and the Commission's website. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 01-2015-2191 7 0120152191