DATE: June 19, 1995
CASE NO. 92-WPC-00002
IN THE MATTER OF
DONALD W. MCCLURE,
COMPLAINANT,
v.
INTERSTATE FACILITIES, INC. D/B/A
LOUISVILLE SOUTH AUTO/TRUCK PLAZA,
RESPONDENT.
BEFORE: THE SECRETARY OF LABOR
FINAL DECISION AND ORDER
Before me for review is a Recommended Summary Decision (R.
S. D.) issued by the Administrative Law Judge (ALJ) in the above-
captioned case arising under the employee protection provision of
the Federal Water Pollution Control Act (FWPCA), 33 U.S.C. §
1367 (1982). See 29 C.F.R. § 24.6(a) (1994).
Issue Presented
While this case was before the Department of Labor's Wage
and Hour Division, the parties executed a settlement agreement
purporting to resolve the complaint. In the agreement Respondent
refused to admit any violation but agreed that Complainant would
be reinstated to his former position. In response, the District
Director, acting on behalf of the Administrator of the Wage and
Hour Division, issued a notice of determination that Respondent
discharged Complainant in violation of the FWPCA, attached a copy
of the settlement agreement, and required Respondent to remedy
the violation by reinstating Complainant as provided in the
agreement.
Respondent objected to the issuance of a notice of
determination and requested a hearing. Both parties and counsel
[PAGE 2]
for the Acting Administrator filed pleadings before the ALJ.
Although all agreed that the ALJ should accept the settlement,
the Acting Administrator and Respondent disagreed concerning
whether the notice of determination should be withdrawn. The ALJ
essentially agreed with Respondent. He vacated the notice of
determination and ruled that the parties' settlement agreement
disposed of the complaint. R. S. D. at 10. The Acting
Administrator filed a statement before the Secretary arguing that
irrespective of the existence of a signed settlement agreement,
the ALJ exceeded his authority in vacating the notice of
determination.
Discussion
It was unnecessary for the ALJ to vacate the notice of
determination. As the Secretary has explained repeatedly, once
the aggrieved party files a proper request for a hearing, the
notice of determination never becomes the final order of the
Secretary. See 29 C.F.R. § 24.4(d)(2)(i) and (3)(i);
Smith v. TVA, Case No. 87-ERA-20, Sec. Ord., Apr. 27,
1990, slip op. at 4 n.2; Shusterman v. Ebasco Servs.,
Inc., Case No. 87-ERA-27, Sec. Ord., Jul. 2, 1987, slip op.
at 2, Sec. Ord., Jan. 6, 1992, aff'd, 978 F.2d 707 (2d
Cir. 1992). Instead, the timely request for a hearing prompts a
denovo review. Id.; see also Smith v.
Littenberg, Case No. 92-ERA-52, Sec. Ord., June 30, 1993,
slip op. at 5-8; Eisner v. United States EPA, Case No. 90-
SDW-2, Sec. Ord., Dec. 8, 1992, slip op. at 7 n.6.
Here, it is undisputed that Respondent filed a timely
request for a hearing. See 29 C.F.R. §
24.4(d)(3)(i). Thus, by operation of law, the District
Director's determination is rendered of no force or effect, and
is not legally prejudicial to Respondent.[1]
Contrary to Respondent's further argument, Complainant's
consent to the settlement agreement did not lay "to rest all
allegations of discrimination." Respondent's Reply dated
March 12, 1992, at 2. This is not an ordinary lawsuit where a
plaintiff's consent to settle a complaint ends the inquiry. The
Department of Labor does not simply provide a forum for private
parties to litigate their private employment discrimination suits
such that the parties are free to resolve the case as they
choose. Protected whistleblowing may expose not just private
harms but health and safety hazards to the public, and the
Secretary of Labor has been entrusted by Congress to represent
the public interest in keeping channels of information open.
Hoffman v. Fuel Economy Contracting, Case No. 87-ERA-33,
Sec. Ord., Aug. 4, 1989, slip op. at 2-3; Polizzi v. Gibbs &
Hill, Inc., Case No. 87-ERA-38, Sec. Ord., Jul. 18, 1989,
slip op. at 2. Consistent with that trust and to assure that
whistleblowers are adequately protected, the Secretary has
permitted parties to
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resolve complaints under the FWPCA by settlement where the
Secretary finds that the settlement is fair, adequate, and
reasonable under the circumstances. See, e.g., Iverson v.
Town of Keystone, S.D., Case No. 93-WPC-0003, Sec. Ord., June
28, 1993; Rogers v. Front Range Envtl. Serv., Case No. 90-
ERA[WPC]-20, Sec. Ord., Aug. 21, 1990; McAllen v. United
States EPA, Case No. 86-WPC-1, Sec. Ord., May 5, 1987.
After reviewing this record and the terms of the agreement,
in which Respondent does not admit a violation of the FWPCA but
agrees to retroactively reinstate Complainant, I find that the
agreement is a fair, adequate and reasonable settlement of
Complainant's allegations under the FWPCA. Accordingly, I
approve the settlement, and this case IS DISMISSED.
SO ORDERED.
ROBERT B. REICH
Secretary of Labor
Washington, D.C.
[ENDNOTES]
[1] The language in Nolder v. Raymond Kaiser Eng'rs,
Inc., Case No. 84-ERA-5, Sec. Ord., June 28, 1985, slip op.
at 14 n.12, relied on by the ALJ -- that the determination of the
Wage and Hour Division "could be vacated by order of the ALJ" --
is dicta. In Nolder the Secretary held, in relevant part,
that under Rule 41(a)(2) of the Federal Rules of Civil Procedure,
the determination did not constitute legal prejudice to the
respondent because upon dismissal of the case without prejudice,
the determination would be "automatically vacated." Slip op. at
14. In other words, by operation of law, the determination is
rendered of no legal force or effect. See also Mosbaugh v.
Georgia Power Co., Case No. 90-ERA-58, Sec. Ord., Sept. 23,
1992, slip op. at 6 n.4; Black's Law Dictionary 963 (5th
ed. 1979). Thus, Nolder does not support the ALJ's ruling
but rather is more analogous to the ruling in this decision.
