U.S. Department of Labor
Office of Administrative Law Judges
50 Fremont Street, Suite 2100
San Francisco, CA 94105
DATE: JANUARY 17, 1997
CASE NO. 97-ERA-6
In the Matter of
LAXMI N. KHANDELWAL,
Complainant
v.
SOUTHERN CALIFORNIA EDISON
Respondent.
RECOMMENDED ORDER GRANTING SUMMARY DECISION AND DISMISSAL OF COMPLAINT
This is a whistleblower action brought under
the employee protection provisions of the Energy Reorganization
Act, as amended (hereinafter "ERA" or "Act"),
42 U.S.C. §5851 et seq. The immediate issue for
resolution is whether Southern California Edison's (SCE) motion
for summary judgment should be granted, based on its contention
that Complainant's knowing and voluntary execution of the
Severance Agreement and Release (Agreement) in July 1995
effectively released SCE from liability for any individual causes
of action Complainant may have had against it. This referenced
Agreement was part of an early retirement package that SCE
offered its employees, in lieu of termination, during a
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restructuring program which caused a reduction in SCE's
employment force. Complainant's response is that his execution
of the Agreement did not waive his right to pursue his claim of
retaliation.
Procedural History
Complainant was employed as an engineer with
SCE for approximately twenty-three years. He first discussed with
SCE management his safety concerns regarding the proper operation
of MDR and Agastat relays in May, June and September 1993.
During this period, complainant stated that he was harassed by
management and, in November 1993, was removed from his
supervisory position. Complainant again raised safety concerns
in January and June 1994. In April 1994, he was given a
performance appraisal of below standard - his first below level
appraisal in twenty-three years of service. He believed that his
removal from his supervisory position and his subsequent poor
performance appraisal were due to his identification of safety
issues to SCE management. Complainant challenged his appraisal
through various channels of management and, in June 1994, he
contacted the Nuclear Oversight Division, Safety Concerns Group
Supervisor regarding his perceived retaliation and safety and
compliance issues. In July 1994, he sent an E-Mail to the
Manager of Engineering regarding the Nuclear Regulatory
Commission's (NRC) prohibition for retaliation for raising safety
and compliance issues. Consequently, a new appraisal was given
to complainant in October 1994 and the safety issues he had
identified were finally addressed by SCE in August and October
1994.
In November 1994, complainant received feedback
from SCE's Nuclear Safety Group regarding their investigation
into his perceived retaliation by SCE. The Nuclear Safety Group
found no evidence of retaliation. In response, complainant
asked: (1) why his performance appraisal was noted as below
standard based on false charges; (2) why management took more
than one year to address his safety concerns; and (3) why an
allegedly "independent" investigation was coordinated
and influenced by the same individuals the Nuclear Safety Group
was investigating. Complainant states that he received an
unsatisfactory answer to his second question in January 1995 and
[Page 3]
received no answers to his first or third questions. Complainant
conveyed this to management in a meeting held in February 1995.
On July 7, 1995 and July 10, 1995, complainant
was contacted by management regarding whether he was volunteering
for the severance and to inquire as to his feeling regarding the
reduction in force because management was concerned about him due
to his past actions regarding his past performance appraisal.
Complainant stated that because he did not expect that management
would retaliate like that, he was in a "condition of mental
shock and trauma." His health was deteriorating because of
"the mental anguish, financial & other worries surrounding
the severance." His son, a medical doctor residing in
Odessa, Texas, asked him to visit him for a change of scenery.
Complainant left for Odessa on July 27, 1995, having signed the
Agreement with SCE on July 26, 1995.
The Agreement and Release
The pertinent provisions of the release
contained in the Agreement are set forth below. The Agreement
set forth on the first page, in the first paragraph that
"[y]ou and SCE (collectively referred to as the parties'),
in our wish to compromise, resolve, settle, and terminate any
dispute or claim between us with respect to your employment with
SCE and severance therefrom, have agreed as follows..."
Moreover, the fourth paragraph explicitly sets forth that
In consideration for the payment and benefits which SCE
shall provide you under this Agreement, you, on behalf
of yourself, your heirs, estate, executors,
administrators, successors, and assigns, release and
agree to hold harmless SCE... from all actions, causes
of action, claims, disputes, judgments, obligations,
damages, and liabilities of whatsoever kind and
character, relating to your employment with SCE,
including employment severance and any action which led
to the severance. Specifically, you understand and
agree that the actions, causes of action, claims,
disputes, judgments, obligations, damages, and
liabilities covered by the preceding sentence include,
but are not limited to, those arising under the
Age
[Page 4]
Discrimination in Employment Act and any other federal, state, or
local law, regulation, or order relating to civil rights
(including, but not limited to employment discrimination on the
basis of race, color, religion, age, sex, national origin,
disability, veteran status, marital status, and sexual
orientation), wage and hour, labor, contract, or tort"
Paragraph five released SCE from all claims of every nature
regarding complainant's vested benefits under SCE's Retirement
Plan and Stock Savings Plus Plan.
The Agreement was given to complainant on July
11, 1995, with a return deadline of August 25, 1995, thereby
giving him approximately forty-five days in which to consider the
terms of the Agreement. Moreover, the Agreement explicitly
encouraged the complainant to seek the advice of counsel prior to
signing. Upon execution of the Agreement, the terms also
provided him seven days from date of execution to revoke the
Agreement. Further, in consideration for the release from any
claims complainant may have against SCE, SCE paid him the sum of
$69,498.72, less deductions required by law - a sum SCE was not
otherwise required to pay.
The Agreement did not prohibit complainant from
participating in an investigation or proceeding regarding any
claim he released, where requested to do so by a state or federal
agency. Complainant was also not prohibited from reporting any
safety concern to the NRC or any other federal or state agency or
legislature, or from participating in any investigation or
proceeding regarding such a safety concern.
The Instant Claim
In August 1995, complainant contacted the NRC
regarding his belief that the reduction in force and,
specifically, his compelled retirement was retaliatory due to the
safety concerns he identified to SCE management in 1993 and 1994.
The NRC informed complainant to contact the U.S. Department of
Labor regarding whistleblower protection under the ERA.
Complainant then contacted the Department of Labor, Wage and Hour
Division, in San Diego, California (DOL), and subsequently filed
[Page 5]
a complaint against SCE on September 21, 1995. On October 2,
1995, the DOL notified SCE of complainant's claim and indicated
their preference that the parties reach a mutually agreeable
settlement. By letter dated October 16, 1995, SCE advised the
DOL that complainant and SCE had already reached a settlement
when the Agreement was executed by complainant in July 1995.
This Agreement released SCE from liability for any claims
complainant may have against it and, in consideration for this
release, SCE paid him approximately $70,000. Accordingly, SCE
requested the DOL to dismiss the complaint with prejudice.
On October 23, 1995, the DOL sent a letter to
SCE requesting additional information and requesting a meeting to
review certain documents. This letter also stated that the fact
that complainant signed SCE's Agreement "does not preclude
this Agency from investigating his claim of wrongful
termination" under the ERA. On December 8, 1995, SCE
requested Ms. Echaveste, the Wage and Hour Division
Administrator, to issue a formal policy determination that Wage
and Hour would honor pre-existing releases similar to the one
involved here and, therefore, dismiss the complaint. In an
internal memorandum dated June 24, 1996, Ms. Geraldine Rimple,
Investigator for DOL, stated that her recommendation was that the
case be administratively closed with a "No Violation
finding" or forwarded to the National Office of the
Solicitor of Labor for closure or further action.
On August 15, 1996, Ms. Echaveste issued her
determination that the DOL would uphold severance agreements
containing releases if they were fair, adequate, and reasonable
under the standards generally applied by the Secretary of Labor
to similar agreements.
In a letter dated October 3, 1996, Ms. Burleson
informed complainant of her finding that his termination was part
of a planned reduction in force and he and fifty-eight other
employees elected to accept SCE's severance package with early
retirement. Moreover, she noted that there was no indication
that complainant was coerced or under duress to accept this
package. Ms. Burleson informed complainant of his rights to
appeal to the Office of Administrative Law Judges if he disagreed
with the DOL's findings. Accordingly, complainant timely filed
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an appeal with this office, stating that he disagreed with the
DOL findings because they did not perform a "detailed
investigation as they were planning earlier..." per their
letter dated October 23, 1995 and the investigator "rushed
to a decision without considering all of the relevant
facts."
Discussion
A motion for summary decision in an ERA case is
governed by 29 C.F.R. §§ 18.40 and 18.41. See e.g.
Howard v. Tennessee Valley Authority, 90-ERA-24 (Sec'y July
3, 1991). A party opposing a motion for summary judgment
"must set forth specific facts showing that there is a
genuine issue of fact for the hearing. 29 C.F.R. §18.40(c).
Under the analogous Fed. R. Civ. P. 56(e), the non-moving party
"may not rest upon mere allegations or denials of his
pleading, but must set forth specific facts showing that there is
a genuine issue for trial.... Instead, the party opposing the
summary judgment must present affirmative evidence..." to
defeat the motion. Anderson v. Liberty Lobby, 477 U.S.
242, 256-57 (1986).
1 I note that had
complainant's cause of action been based upon SCE's conduct subsequent to execution of the Agreement, the
timing of the execution of the Agreement would likely be relevant.
