Immanuel v. Wyoming Concrete Industries, Inc., 1995-WPC-03 (ALJ June 23, 1999)

U.S. Department of Labor

Office of Administrative Law Judges 800 K Street, NW, Suite 400-N Washington, DC 20001-8002 (202) 565-5330 (202) 565-5325 (FAX)

Date Issued: June 23, 1999
Case No.: 95-WPC-3

In the Matter of

Henri W. M. Immanuel
   Claimant

   v.

Wyoming Concrete Industries, Inc.,
   Employer

   This is a proceeding under the Water Pollution Control Act, 33 U.S.C. 1367 (1988), and the implementing regulations found in 29 C.F.R. Part 24, whereby employees or employers subject to the Act and regulations may file complaints and receive certain redress upon a showing of being subjected to discriminatory action resulting from protected activity.

   After a hearing, on October 24, 1995, Administrative Law Judge Nicodemo DeGregorio issued his recommended decision and order, recommending the dismissal of the Claimant's claim; on May 28, 1997, the Administrative Review Board issued its final decision and order dismissing the Claimant's complaint. The Claimant appealed, and on March 24, 1998, the U.S. Court of Appeals for the Fourth Circuit remanded the case for further proceedings consistent with its opinion, holding that Administrative Law Judge DeGregorio erred in failing to compel the appearance of witnesses under the control of the Employer at the hearing. On April 20, 1998, the ARB vacated its earlier Final Decision and Order of Dismissal and remanded the matter for a supplemental hearing involving witnesses within the control of the Employer as requested by the Claimant.

   This matter was subsequently assigned to the undersigned, and on April 12, 1999, I issued an Order setting the matter for a supplemental hearing on June 16, 1999, in Baltimore, Maryland. Shortly before the scheduled hearing, I was advised by the parties that they had reached an agreement for settlement. On June 15, 1999, I received a Stipulation for Dismissal with Prejudice, signed by the Complainant and his counsel, as well as counsel for the Employer (who is also a corporate officer of the Employer). On June 22, 1999, I received a copy of the Release and Satisfaction, also signed by the Claimant and his counsel, and counsel for the Employer, setting out the substance of the agreement between the parties.

   As the request for dismissal is based upon an agreement entered into by the parties, I have reviewed it to determine whether the terms are a fair, adequate and reasonable settlement of the complaint.¹ I find that it is a fair, adequate, and reasonable settlement of the complaint, and accordingly, IT IS RECOMMENDED that the agreement be APPROVED and that the COMPLAINT BE DISMISSED WITH PREJUDICE.

      LINDA S. CHAPMAN
      Administrative Law Judge

NOTICE: This Recommended Decision and Order will automatically become the final order of the Secretary unless, pursuant to 29 C.F.R. §§ 24.8, a petition for review is timely filed with the Administrative Review Board, United States Department of Labor, Room S-4309, Frances Perkins Building, 200 Constitution Avenue, NW, Washington, DC 20210. Such a petition for review must be received by the Administrative Review Board within ten business days of the date of this Recommended Decision and Order, and shall be served on all parties and on the Chief Administrative Law Judge. See 29 C.F.R. §§§§ 24.8 and 24.9, as amended by 63 Fed. Reg. 6614 (1998).

¹ As this is a request for dismissal based upon a settlement agreement, Fed.R.Civ.P. 41(a)(1)(ii) does not apply.