U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Allen M,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Southern Area), Agency. Appeal No. 0120171147 Agency No. 4G752000217 DECISION Complainant filed a timely appeal with this Commission from a final decision (FAD) by the Agency dated January 30, 2017, 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 Rural Carrier at the Agency's Post Office facility in Waxahachie, Texas. Believing that the Agency subjected him to unlawful discrimination, Complainant contacted an Agency EEO Counselor to initiate the EEO complaint process. On November 3, 2016, Complainant and the Agency entered into a settlement agreement to resolve the matter. The settlement agreement provided, in pertinent part, that: * This document is confidential. However, a copy of this agreement will be furnished to those parties necessary to implement its terms including, but not limited to, the office of Labor Relations at the district and/or area level. * The parties understand that the terms of this agreement are protected by the Privacy Act as described below and agree to keep the terms of this agreement confidential except as otherwise required by law and as necessary to carry out the terms of the agreement or resolve disputes over compliance of this agreement. * As a routine use, this information may be disclosed to . . . a labor organization as required by the National Labor Relations Act. By letters to the Agency dated November 15 and 17, 2016, 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 on November 9, 2016, the Postmaster (P) told Complainant's Union representative (UR) about the terms of the Agreement and subsequently gave her a copy. Complainant further alleged that on November 16, 2016 a Supervisor (S1) verbally announced to another Supervisor (S2) in front of other coworkers that Complainant had entered into a "Last Chance Agreement." In its January 30, 2017 FAD, the Agency concluded there was no breach of the Agreement. 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). In the instant case, the Agency found that there was no breach of the Agreement. The Agency noted that P admitted that he had provided a copy of the Agreement to UR but he averred that he did so in response to a Union request for information regarding a grievance on Complainant's behalf involving the Agreement. P further averred that he checked with Labor Relations and was advised that he was legally required to provide the information. P further averred that: Any management official supervising Counselee would have a legitimate need to know the terms of the Settlement Agreement, which was a "last change (sic) agreement" setting the performance standards for [Complainant's] continued employment. Therefore, disclosure of the Agreement to [Complainant's] supervisors - including [S2] and [S1] - would not be a breach of the confidentiality provisions, because they would be among the parties responsible for implementing and carrying out the terms of the Agreement. The FAD noted that Complainant argued that "There is nothing in this settlement agreement that is necessary to share with my coworkers or my supervisors in order to implement the terms of the agreement," but the Agency disagreed. Following a review of the record we find the Agency to have breached the Agreement. The FAD addresses Complainant's allegations regarding P's disclosure to UR and S1 & 2 but the Agency does not deny that S1 verbally announced the existence of the agreement before Complainant's coworkers who were not authorized to know about it. We note that the privacy terms contain exceptions concerning who may learn about the Agreement but none of these exceptions include Complainant's coworkers. Assuming S1 had a right to know about the Agreement in order to implement its terms, he did not have the right, under the Agreement, to talk about it before Complainant's coworkers. We therefore find that the Agency breached the Agreement when S1 mentioned it in front of Complainant's coworkers. We next note that the record contains a copy of an email to the Agency EEO specialist dated January 26, 2017 wherein Complainant alleges that he signed the Agreement under false pretenses. This Decision, however, addresses only Complainant's two allegations of breach made on November 15 and 17, 2016, referenced in the FAD. Where we find a breach, the Commission has two options to remedy the situation: 1) reinstate the complaint or 2) order specific performance. Here, Complainant has requested reinstatement of his underlying EEO Complaint. 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. Department of Defense, EEOC Appeal No. 01965593 (June 24, 1997). The Agreement included a provision that Complainant's Notice of Removal be "held in suspense for a total of six months." Should his complaint be reinstated, Complainant should understand that this provision would no longer apply and the original Notice of Removal would also be reinstated. CONCLUSION The complaint is hereby REMANDED to the Agency 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 the annulment of the "Last Chance" provision of the Agreement. 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 complaint, 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 complaint 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 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 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 complaint 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 notice to Complainant regarding his options, as well as a copy of either the correspondence reinstating the complaint for processing or the correspondence notifying Complainant that the terms of the settlement agreement will be specifically enforced, must be sent to the Compliance Officer, as referenced below. 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 (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 July 20, 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 0120171147 6 0120171147