ARB CASE NO. 05-125
ALJ CASE NO. 2005-SOX-36
DATE: August 31, 2007
In the Matter of:
BOGDAN RADU,
COMPLAINANT,
v.
LEAR CORPORATION,
RESPONDENT.
BEFORE: THE ADMINISTRATIVE REVIEW BOARD
Appearances:
For the Complainant:
Karen S. Kienbaum, Esq., Kienbaum & Associates, Detroit, Michigan
For the Respondent:
Maurice G. Jenkins, Esq., Dickinson Wright, PLLC, Detroit, Michigan
FINAL DECISION AND ORDER APPROVING SETTLEMENT
AND DISMISSING COMPLAINT WITH PREJUDICE
This case arose
when the Complainant, Bogdan Radu, filed a complaint under the whistleblower
protection provisions of the Sarbanes-Oxley Act of 2002 (SOX or the Act).[1]
On June 21, 2005, a Department of Labor
Administrative Law Judge (ALJ) issued an Order Granting Motion to Dismiss
(D.O.) on the grounds that Radu did not timely file his complaint and that he
failed to establish that he was entitled to equitable tolling of the
limitations period.
[Page 2]
The Secretary of
Labor has delegated her authority to issue final administrative decisions in
cases arising under SOX to the Administrative Review Board (Board).[2]
Radu filed a timely petition requesting the Board to review the ALJ’s O.D.[3]
In response, the Board issued a Notice of Appeal and Order Establishing
Briefing Schedule. Both parties filed briefs with the Board.
On September 14, 2006,
before the Board reached a decision on the merits, Radu submitted a motion to
withdraw his appeal and attached a Settlement Agreement and General Release.
The parties may settle a case arising under SOX if the participating parties
agree to a settlement and they provide the Board with a copy of the settlement
for its review and approval.[4]
For the reasons set out below, we approve the Settlement Agreement as construed.
The Board notes
that the Agreement encompasses the settlement of matters under laws other than
SOX.[5]
Our authority to review settlement agreements is limited to the statutes
within our jurisdiction.[6]
Therefore, we have restricted our review of the Settlement Agreement to ascertaining
whether its terms fairly, adequately and reasonably settle this SOX case over
which we have jurisdiction. We have determined that the terms do so settle the
case; moreover, neither of the parties have alleged otherwise.
The Agreement
provides that the parties shall keep the terms of the settlement confidential,
with certain specified exceptions.[7]
The Board notes that the parties’ submissions, including the Agreement,
become part of the record of the case and are subject to the Freedom of Information
Act (FOIA).[8]
FOIA requires federal agencies to disclose requested records unless
[Page 3]
they are
exempt from disclosure under the Act.[9]
Department of Labor regulations provide specific procedures for responding to FOIA requests, for responding to appeals by requestors from
denials of such requests, and for protecting the interests of submitters of
confidential commercial information.[10]
Furthermore, if
the provisions in paragraph 9 of the Settlement Agreement were to preclude Radu
from communicating with federal or state enforcement agencies concerning
alleged violations of law, they would violate public policy and therefore
constitute unacceptable “gag” provisions.[11]
Additionally, we
construe paragraph 8, the governing law provision, as not limiting the
authority of the Secretary of Labor and any federal court, which shall be
governed in all respects by the laws and regulations of the United States.[12]
The parties have
agreed to settle Radu’s SOX claim. Accordingly, as construed, we APPROVE
the Agreement and DISMISS the complaint with prejudice.
SO ORDERED.
M. CYNTHIA DOUGLASS
Chief Administrative Appeals Judge
Administrative Appeals Judge
[1] 18 U.S.C.A. § 1514A (West 2007). The
regulations implementing SOX are found at 29 C.F.R. Part 1980 (2006).
[2] Secretary’s
Order 1-2002 (Delegation of Authority and Responsibility to the Administrative
Review Board), 67 Fed. Reg. 64,272 (Oct. 17, 2002); 29 C.F.R. §§ 1980.110.
[3] 29 C.F.R. § 1980.110(a).
[4] 29 C.F.R. § 1980.111(d)(2).
[5] See, e.g., para. 2 of the Settlement
Agreement and General Release.
[6] Saporito v. GE Med. Sys., ARB No.
05-009, ALJ Nos. 03-CAA-001, 03-CAA-002, slip op. at 3 (ARB May 24, 2005).
[7] Settlement Agreement and General Release,
para. 9.
[8] 5 U.S.C.A. § 552 (West 2007).
[9] Coffman v. Alyeska Pipeline Serv. Co.
& Arctic Slope Inspection Serv., ARB No. 96-141, ALJ Nos. 96-TSC-005,
6, slip op. at 2 (ARB June 24, 1996).
[10] 29 C.F.R. § 70 et seq. (2006).
[11] Ruud v. Westinghouse Hanford Co., ARB No. 96-087, ALJ No. 1988-ERA-33, slip op. at 6 (ARB
Nov. 10, 1997); Conn. Light & Power Co. v. Sec’y, U.S. Dep’t of
Labor, 85 F.3d 89, 95-96 (2d Cir. 1996) (employer engaged
in unlawful discrimination by restricting complainant’s ability to provide
regulatory agencies with information; improper “gag”
provision constituted adverse employment action).
[12] Phillips v. Citizens Ass’n for Sound
Energy, 1991-ERA-25, slip op. at 2 (Sec’y Nov. 4, 1991).
