DATE ISSUED: JULY 1, 1997
CASE NO.: 97-CAA-00011

In the Matter of

DELMAS E. GREENELTCH
    Complainant

    v.

OHIO VALLEY MEDICAL CENTER
    Respondent

Appearances:

Louise Q. Symons, Esq.
    For the Complainant

Scott F. Zimmerman, Esq.
    For the Respondent

Before: RICHARD A. MORGAN
    Administrative Law Judge

    This proceeding arose under the employee protection provisions of the Clean Air Act, 42 U.S.C. § 7622 (1982)("Act"), and the implementing regulations at 29 C.F.R. Part 24. Complainant, Delmas E. Greeneltch, filed a complaint with the Secretary of Labor, on December 24, 1996, alleging that he was a protected employee engaged in a protected activity within the scope of the Act and was discharged as a result of this activity.

    A compliance investigation was conducted by the Charleston, West Virginia, Office of the Wage and Hour Division of the Employment Standards Administration, U.S. Department of Labor. On March 21, 1997, the District Director announced his determination that the complainant's discharge was "based upon [his] failure to advise [his] employer of additional asbestos problems in the hospital after being asked and reporting to your [his] employer that there was no more asbestos on the property when additional asbestos was found on the property...your termination was based upon [his] job performance." The District Director concluded, "discrimination was not a factor in the actions comprising [his] complaint."

   On March 27, 1997, Mr. Greeneltch telegrammed a request for a hearing on the complaint to the Chief Administrative Law Judge. I was assigned the case, on April 3, 1997. On April 7, 1997, I issued a Notice setting a hearing date of May 27, 1997. On May 23, 1997, I was advised the parties had "resolved in principle the issues in the complaint" and postponed the hearing. The parties were ordered to submit their proposed settlement by June 4, 1997.

    On June 4, 1997, I received a "Stipulation for Dismissal with Prejudice." A "Settlement Agreement and Release" was not submitted until June 6, 1997. After a telephone conference, a revised settlement agreement was submitted, on June 20, 1997. The agreement provides that upon the issuance of an order dismissing the complaint with prejudice, Respondent will pay Mr. Greeneltch a specified sum of money, a portion of which is related to his wage claims, conditioned upon limited services being provided by Mr. Greeneltch for a specified time period. The complainant further agrees not to seek re-employment by the hospital and not to make "disparaging" comments concerning it and its affiliated personnel. It does not limit the assertion of legal rights or discharge of legal obligations.

    The complainant further agreed to a mutual "general release" of all claims, causes of action and liability arising under not only the Civil Rights Act of 1964, the Employee Retirement Income Security Act of 1974, and the City of Wheeling Human Rights Ordinance but also other West Virginia, local and Federal statutes, executive orders, and regulations referred to on page two of the agreement. The respondent did not agree to releasing Mr. Greeneltch from any liability. The parties agree to keep the matter of the agreement confidential.

    There are no further aspects of the agreement which need be discussed for purposes of this recommendation.

    In various final orders approving settlements in which violations of laws in addition to the Clean Air Act are alleged, the Secretary has limited review of the agreements to determining whether the terms are a fair, adequate and reasonable settlement of the complainant's allegations under the Clean Air Act. See, e.g., Poulos v. Ambassador Fuel Oil Co., Inc., Case No. 86-CAA-1, Sec. Order, November 2, 1987, slip opin. at 2. A similar concern was recognized in Anderson v. Waste Management of New Mexico, Case No. 88-TSC-2,

Sec. Final Order Approving Settlement, December 18, 1990, slip opin. at 2, where the Secretary honored the parties' confidentiality agreement except where disclosure may be required by law.

    Additionally, the Secretary has interpreted provisions such as the one in paragraph 9 of this agreement, which specified interpretation under the laws of West Virginia, as not limiting the Secretary's authority under the statute and regulations. See, Phillips v. Citizens Association for Sound Energy, Case No. 91-ERA-25, Sec. Final Order of Dismissal, November 14, 1991, slip opin. at 2. Also, the implementing regulations, as interpreted by the Secretary, provide only for dismissals for cause, not voluntary dismissals of complaints. See, Cornish v. Consolidated Edison Company of New York, Inc., Case No. 88-CAA-5, Sec. Order of Dismissal, September 29, 1989, slip opin. at 2. 29 C.F.R. § 24.5(e)(4).

    I have no basis on which to recommend that the amount agreed upon is not fair, adequate and reasonable. Nor do I have reason to believe other provisions in the agreement are inappropriate.

    Subject to the limitations discussed above, and noting that the parties are represented by counsel, it is hereby RECOMMENDED that the Secretary of Labor find the terms of the agreement fair, adequate and reasonable, and therefore approve the Settlement Agreement and release. It is further RECOMMENDED that the complaint be dismissed with prejudice.

    SO ORDERED.

       RICHARD A. MORGAN
       Administrative Law Judge

RAM/lab

NOTICE: This Recommended Order of Dismissal and the administrative file in this matter will be forwarded, in accordance with the Predisclosure Notification Procedures, for final decision to the Administrative Review Board, United States Department of Labor, Room S-4309, Frances Perkins Building, 200 Constitution Avenue, N.W., Washington, DC 20210. See 61 Fed. Reg. 19978 and 19982 (1996).