and, with the exceptions
discussed below, I find it
fair, adequate and reasonable. Paragraph 3 of the settlement
prohibits Complainant from "provid[ing] any documents received by
and through the litigation process in this case, or any
information describing or analyzing the information to the
Nuclear Regulatory Commission ("NRC") [or] to any other person,
and will not take any action to do anything to suggest or
otherwise induce the NRC or any other person, to take any action
to review the information received by and through this case . . . .
[Complainant] will [not] take part in or assist in any action,
claim, or proceeding on any alleged violation, claim or event
testified to by (Complainant) and others during the course of
this proceeding . . . . Paragraph 4 provides that
"[Complainant] . . . will not voluntarily appear to or for the
NRC or any other person as a witness in any proceeding . . . ."
Paragraphs 3 and 4 of the settlement here would restrict
Complainant from providing documents or information obtained in
the course of this case to the NRC or any other agency. Such
documents or information could be relevant and material to law
enforcement investigations by the NRC or other agencies,
including investigation by the Department of Labor under the ERA
or other laws. Paragraphs 3 and 4 would also prohibit
Complainant from testifying, taking part in or assisting in any
law enforcement proceeding in which alleged violations of the ERA
or events related to this case may arise.
I previously considered a similar provision in an ERA case.
See Polizzi v. Gibbs & Hill, Inc ., Case No. 87-ERA-38, Sec.
order, July 18, 1989 (copy appended). As I held in Polizzi ,
these provisions would have the effect of drying up channels of
information for the Department of Labor in ERA cases and under
other laws, as well as for other agencies in carrying out their
responsibilities. For the same reasons as set forth in Polizzi
v. Gibbs & Hill, Inc ., slip op. at 5-7, which I adopt and
incorporate here, I find paragraphs 3 and 4 of the settlement
void as against public policy, to the extent that they would
prohibit Complainant from communicating to federal or state
enforcement authorities as identified above.
The remainder of the Agreement may be enforceable if
"performance as to which the agreement is unenforceable is not an
essential part of the agreed exchange." EEOC v. Cosmair, Inc .,
821 F.2d at 1091 (quoting the Restatement (Second) of Contracts,
§ 184(l) (1981).) See also Nicholas v. Anderson , 837 F.2d 1372,
1375 (5th Cir. 1988) ("[I]f less than all of a contract violates
public policy, the rest of the contract may be enforced unless
the unenforceable term is an essential part of the contract.")
Thus, in McCall v. United States Postal Service , 839 F.2d 664
(Fed. Cir. 1988), an employee had settled an action challenging
his removal by agreeing that, upon reinstatement for a one year
probationary period, he would not appeal any disciplinary action
taken against him and also waived his right to file a charge with
EEOC. The court held that "even if (the employee's ) attempted
waiver of his right to file EEOC charges is void, that would not
affect the validity of other portions of the agreement." 839
F.2d 664, 666 at *.
Unlike the record before me in Polizzi , there is no
information in this record from which I can determine whether the
Respondents, the parties in whose favor the invalid provisions of
paragraphs 3 and 4 would run, intended to agree to the remainder
of the settlement if the provisions I have found void, as
discussed above, are severed. Accordingly, Respondents will be
given an opportunity to show cause why the remainder of the
agreement should not be approved and the case dismissed.
Paragraph 8(e) requires that, if Complainant is rehired at
omaha Public Power District and believes he is retaliated against
again, Complainant will notify Respondents of the alleged
retaliation and give them an opportunity to address the problem
before taking legal or administrative action. Because a
Complainant under the ERA has only 30 days from the date of
discrimination to file a complaint with the Department of Labor,
I interpret this provision as not restricting Complainant from
filing a complaint under the ERA to protect his rights and to
notify the Department of Labor of such violations of the Act
while Respondents take steps they consider appropriate to resolve
the matter.
Finally, I note that paragraph 2 of the settlement may
encompass the settlement of matters arising under various laws,
only one of which is the ERA. For the reasons set forth in
Poulos v. Ambassador Fuel Oil Co., Inc ., Case No.86-CAA-1, Sec.
order, November 2, 1987, slip op. at 2, I have limited my review
of the agreement to determining whether its terms are a fair,
adequate and reasonable settlement of Complainant's allegations
that Respondents violated the ERA. Accordingly, except as
limited above, I find the Settlement Agreement to be fair,
adequate and reasonable. Respondents may show cause within 30
days of receipt of this order why the provisions of the
Settlement Agreement which I have found void, discussed above,
should not be severed and the remainder of the settlement
approved and this case dismissed with prejudice. Settlement
Agreement, paragraph 5.
SO ORDERED.
ELIZABETH DOLE
Washington, D.C.
[ENDNOTES]
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