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| September 24, 2008 DOL Home > OALJ Home > Whistleblower Collection |
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USDOL/OALJ Reporter Office of Administrative Law Judges 1111 20th Street N.W. Washington, D.C. 20036 DATE: Jan. 9, 1990 IN THE MATTER OF
William David Simmons, v.
Arizona Public Service Co., CASE NO.: 90-ERA-6 This proceeding arises under Section 210 of the Energy Reorganization Act, 42 U.S.C. §5851, and the regulations issued pursuant thereto 29 C.F.R. Part 24. The parties to the above captioned matter submitted a Joint Motion with an attached Settlement requesting approval of their proposed agreement on January 8, 1990, attached hereto and incorporated herein. The submitted settlement failed to meet the regulatory requirements for settlements under the Energy Reorganization Act. 29 C.F.R. §18.9(b). The parties were informed of this oversight and executed a joint stipulation, which meets the regulatory requirements and by its terms modifies the original settlement accordingly. This joint stipulation was filed on January 9, 1990 and is attached hereto and incorporated herein. [Page 2] It is hereby RECOMMENDED that the Secretary of Labor accept and approve the parties' settlement agreement, as modified by the joint stipulation. After reviewing the agreement, I found the settlement to be a fair, adequate and reasonable resolution of this matter.
JOHN M. VITTONE Deputy Chief Judge JMV/DA/dm BEFORE THE U.S. DEPARTMENT OF LABOR Case No. 90-ERA-6
WILLIAM DAVID SIMMONS,
v. ARIZONA PUBLIC SERVICE CO., Respondent. The undersigned counsel for Complainant and counsel for Respondent hereby jointly move the Administrative Law Judge to enter the attached Recommended Decision and order approving the parties' full and final Settlement Agreement and to forward the attached Approval of Settlement as expeditiously as possible to the Secretary of Labor for her approval. RESPECTFULLY SUBMITTED this 8th day of January , 19 . KOHN, KOHN COLAPINTO, P.C.
By
By
ORIGINAL for the foregoing
The Honorable Judge Vittone SECRETARY OF LABOR WASHINGTON, D.C.
Case No. 90-ERA-6
WILLIAM DAVID SIMMONS,
v. ARIZONA PUBLIC SERVICE CO., Respondent.
In accordance with the recommendation of Administrative Law Judge John M. Vittone, the Settlement Agreement entered into by the parties in this case is approved pursuant to Section 210 of the Energy Reorganization Act, 42 U.S.C. §5851, and the Safe Drinking Water Act, 42 U.S.C. §300j-9. Date this day of , 1990.
Secretary of Labor BEFORE THE U.S. DEPARTMENT OF LABOR Case No. 90-ERA-6
WILLIAM DAVID SIMMONS,
v.
ARIZONA PUBLIC SERVICE CO.,
(SECTION 210 OF THE ENERGY REORGANIZATION ACT AND THE SAFE DRINKING WATER ACT) This Settlement Agreement constitutes a final and comprehensive resolution of Mr. William David Simmons' complaints against Respondent Arizona Public Service Company/Arizona Nuclear Power Project (APS/ANPP) to the Department of Labor (DOL) of October 13, 1989 and October 17, 1989 filed under Section 210 of the Energy Reorganization Act (ERA) and under the Safe Drinking Water Act (SDWA). Submitted simultaneously herewith is a joint notice to the Administrative Law Judge (ALJ) requesting approval of this full and final Settlement Agreement of the parties' claims. 1. Mr. Simmons voluntarily withdraws his DOL complaints of October 13, 1989 and October 17, 1989, and agrees not to file any additional or supplemental claims under Section 210 of the ERA or under the SDWA against APS/ANPP regarding any event or incident which occurred on or before the date of executive of this Settlement Agreement. 2. Mr. Simmons agrees that upon being reinstated to his prior position that he held on October 3, 1989, he will make up all deficient training courses. 3. This settlement shall not be construed as an admission of any wrongdoing by any of the parties, nor shall it be construed as an adjudication on the merits for or against either party. This Agreement settles all claims that Mr. Simmons had, or may have had, under Section 210 of the ERA, 42 U.S.C. 5851, or under the Safe Drinking Water Act, 42 U.S.C. 300 et seq., against Respondent from May 15, 1982 until and through the date this Settlement is ratified by the parties, and Complainant agrees not to file Section 210 charges or Safe Drinking Water Act charges based on any conduct by Respondent during this time period. 4. Nothing contained in this Settlement Agreement shall be construed to preclude Mr. Simmons from reporting any safety concerns to any Federal, State, or local governmental agency. 5. The parties acknowledge that on December 26, 1989, Respondent placed Mr. Simmons in the position of WRF Operations Engineer III at his request, at the same salary level he was at in the Work Evaluator position. 6. In exchange for the promises of Mr. Simmons contained herein, Respondent agrees to the following: a) That Respondent will transfer Mr. Simmons to the same position he held prior to his termination from Palo Verde in October, 1989. Mr. Simmons will be required to take up all deficient training and Respondent will give Simmons time to study for and take all necessary training tests. He will make up those exams on a one-on-one basis unless there is a regularly scheduled class in which he can participate. b) Pay Mr. Simmons backpay from, October 3, 1989 to December 22, 1989 in the amount of $8,280.08; c) Provide confirmation to American Express that Simmons has been reinstated to his former rate of pay; d) Provide confirmation to the Bankruptcy Court that Simmons has been reinstated to his former rate of pay; e) Pay Simmons the difference in value of his Pinnacle West stock at the date he sold the stock and the market value of the stock on the date the settlement is approved by the ALJ; f) Bridge Simmons' pension rights for the period he was underemployed; g) Bridge Simmons' seniority so that he suffered no loss in seniority due to the termination; h) Ensure that Simmons losses no sick leave, vacation leave, or other accrued medical benefits as a result of his termination on October 3, 1989; i) Permantely remove from Simmons' personnel file all documents concerning the October 3, 1989 incident with the exception of Simmons' October 3, 1989 statement which will remain in the personnel file for six (6) months from the date of the incident, October 3, 1989. 7. Respondent also agrees to reimburse Simmons for the following items up to the amounts indicated, subject to proper documentation; a) Three depositions ($834.05); b) Copying costs ($254.64) c) Mailing costs ($262.50); d) Long distance ($156.40); e) Rental car ($39.69); f) Hotel for California ($130.00); g) Air fare (,000); h) Witness fees ($90.00); i) Hotel for Phoenix ($270.00); j) Firm-incurred costs of mailing, etc. ($700.00); k) Airline tickets ($774); and l) Attorneys' fees ($9,000) Said expenses and costs will be paid within ten (10) working days of the date that Simmons' counsel indicates all receipts have been produced to Respondent's counsel, or within two working days after Respondent has received formal written notice that the Administrative Law Judge has approved the Settlement Agreement, whichever is later. Said payment is subject to the other approvals and executions set forth in paragraph 10. Payments of monies outlined in paragraph 7, e,f,g,i,j, and l shall be paid directly to counsel by check made payable to Kohn, Kohn & Colapinto, P.C.. Reimbursements under 6b,6e,7a,b,c,d,h, and k shall be directly paid to Mr. William David Simmons. 8. Respondent will not retaliate or discriminate against Simmons because he filed a Section 9110 or Safe Drinking Water Act charge against Respondent. 9. The parties agree to keep the terms of this Settlement Agreement confidential except that said terms can be revealed if required by federal or state law. The parties may reveal that the dispute has been settled and that the settlement resulted in Mr. Simmons being reinstated to the same position he held prior to his termination on October 3, 1969. 10. APS/ANPP's obligations to perform the covenants contained herein are contingent upon the Administrative Law Judge approving the parties' Settlement Agreement, the Department of Labor approving the OFCCP Agreement signed by Simmons within five working days of the date Mr. Simmons signs and delivers the agreement to APS counsel, and the execution of the Full Waiver and Release document. If the Department of Labor does not approve the OFCCP agreement within five working days, this tern, becomes void. The parties agree to jointly request that the Department of Labor expedite the approval of the OFCCP agreement. 11. If the Secretary of Labor does not approve this Settlement Agreement as written, and the parties are unable to resolve the differences, and either party chooses to litigate the merits of this case under either Section 210 or the Safe Drinking Water Act, Mr. Simmons will have ten (10) days in which to reimburse APS/ANPP for all disbursements in the above-mentioned paragraphs. DATED THIS DAY OF JANUARY, 1990.
APPROVED AS TO FORM:
COMPLAINANT:
Stephen M. Kohn
RESPONDENT:
Rebecca Winterscheidt
BY: ITS:
BEFORE THE U.S. DEPARTMENT OF LABOR Case No. 90-ERA-6
WILLIAM DAVID SIMMONS,
v.
ARIZONA PUBLIC SERVICE CO.,
William David SImmons and Arizona Public Services Company/Arizona Nuclear Power Project, by and through their undersigned counsel hereby jointly stipulate that pursuant to 29 CFR §18.9 (b), the settlement agreement in the above-captioned case which was signed by all parties on January 5, 1990, be amended to include the following:
RESPECTFULLY SUBMITTED this day of January, 1990.
SNELL & WILMER
By KOHN, KOHN & COLAPINTO, P.C.
By
Stephen M. Kohn 4733J
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