Sayre v. Veco Engineering, 1999-CAA-19 (ALJ Aug. 5, 1999)

U.S. Department of Labor

Office of Administrative Law Judges 800 K Street, NW, Suite 400-N Washington, DC 20001-8002

Dated: August 5, 1999
Case No. 1999-CAA-0019

In the Matter of

JEANNE SAYRE,
    Complainant,

    v.

VECO ENGINEERING,
    Respondent.

   On February 11, 1999, the complainant filed a complaint with OSHA alleging discrimination due to a previous whistleblower complaint she had filed. On June 1, 1999, the Regional Administrator of OSHA found that the complaint was meritorious, and issued an order providing, inter alia, for compensatory damages of $2500. Respondent, noting that the order did not explain the basis of the compensatory damages award and that it only had five days to appeal the order, filed a protective appeal requesting a hearing before an administrative law judge. On June 23, 1999, the case was assigned to me for hearing and decision.

   Respondent then wrote to the Regional Administrator for clarification of his order. Satisfied with the Regional Administrator's explanation, respondent moves to withdraw the appeal. However, the parties were unsure whether the respondent could withdraw its appeal, and therefore they tried to negotiate a settlement incorporating all of the Regional Administrator's remedies. This failed. Therefore, respondent moves that its appeal be withdrawn. Complainant has no objection to the motion.

   I see no impediment to respondent's motion. Although the U.S. Court of Appeals for the First Circuit recently held that the applicable whistleblower statues require the Secretary or her designee to approve settlements regardless of how far a complaint had progressed in the administrative process, see Beliveau v. U.S. Department of Labor, No. 98-1786 (1st Cir. March 10, 1999), that holding applied only to settlements. Here, the parties have not entered into a settlement or other compromise agreement. Rather, respondent is agreeing to be

bound by the determination of the Regional Administrator, a determination which would have been binding on both parties had no appeal been filed. See 29 C.F.R. 24.4(d)(2). Moreover, the regulations appear to foresee the situation here, for they state:

If a request for a hearing is timely filed, the [Regional Administrator's] notice of determination ... shall be inoperative, and shall become operative only if the case is later dismissed.

(Id.) By granting respondent's motion to withdraw its appeal, the case will be dismissed and the Regional Administrator's determination will be reinstated. I see no reason that §24.4(d)(2) would not apply to the instant case.

   Accordingly, IT IS ORDERED that respondent's motion to withdraw its appeal is granted, and the Regional Administrator's determination is reinstated.

       JEFFREY TURECK
       Administrative Law Judge