U.S. Department of Labor Administrative Review Board
200 Constitution Ave, NW
Washington, DC 20210
ARB CASE NO. 98-098
ALJ CASE NO. 96-WPC-2
DATE: August 18, 1998
In the Matter of:
IRENE ESPINOSA,
COMPLAINANT,
v.
ALLIEDSIGNAL, INC.,
RESPONDENT.
BEFORE: THE ADMINISTRATIVE REVIEW BOARD
ORDER DISAPPROVING SETTLEMENT
AND REMANDING CASE
This case arises under the Clean Air Act (CAA), 42 U.S.C. §7622
(1994), and the Water Pollution Control Act (WPCA), 33 U.S.C. §1367 (1994). The parties
submitted a Release and Settlement Agreement to the Administrative Law Judge (ALJ) seeking
approval of the settlement and dismissal of the complaint. The ALJ issued a Recommended
Decision and Order on March 6, 1998, approving the settlement. For the reasons discussed below,
we decline to adopt the Recommended Decision and Order, and remand the case to the ALJ for
further proceedings.
[Page 2]
Complainant Irene Espinosa (Espinosa) was employed by Respondent
AlliedSignal, Inc. (AlliedSignal) until some time in early 1995. The exact date of Espinosa's
termination is unclear, with the parties claiming at different times that her date of termination was
February 27, April 30 or May 2, 1995. It is undisputed that on May 31, 1995, Espinosa filed a
complaint with the Wage and Hour Division alleging that she was terminated by AlliedSignal for
reporting violations of the CAA and WPCA to enforcement authorities. Separately, in September,
1995, Espinosa filed charges against AlliedSignal before the U.S. Equal Employment Opportunity
Commission and the Broward County (Florida) Human Rights Commission, alleging violations of
federal, state and local civil rights laws.
The environmental whistleblower complaint before the Labor Department
initially was assigned to ALJ Christine McKenna but was subsequently reassigned to ALJ Fletcher
Campbell. Espinosa was represented by attorneys Carroll Ayers and Susan Byrd (Ayers and Byrd).
The date of Espinosa's termination is especially significant, because it
determines whether her complaint was filed within the 30-day time limitation under the statutes.
Based on the materials before us, it appears that the issue of Espinosa's termination date was raised
early in the proceeding before the Labor Department by AlliedSignal, which moved for summary
judgment on the environmental claims alleging that Espinosa's May 31, 1995 complaint had been
filed beyond the 30-day time limitation and thus was untimely. Summary judgment was not granted,
however.
A trial date was scheduled for April 29, 1997. Two days before trial
(i.e., on April 27, 1997) AlliedSignal and Espinosa (represented by Ayers and Byrd) reached
a settlement (Settlement I) under which AlliedSignal would have paid $180,000 in settlement of all
of Espinosa's claims, including the CAA and WPCA claims (the "whistleblower claims")
as well as the civil rights claims under Title VII of the Civil Rights Act of 1964, the Equal Pay Act,
and Florida and Broward County anti-discrimination laws (the "discrimination claims").
The ALJ was contacted by counsel for both parties, and was advised that the scheduled evidentiary
hearing into the whistleblower claims could be canceled in light of the settlement agreement.
However, Settlement I was never finalized. Instead, the following day (April 28, 1997) ALJ
Campbell received a fax from Espinosa denying that she had agreed to the settlement terms. The
hearing was postponed, and soon thereafter Espinosa engaged a new attorney, Kenneth Whitman,
to replace Ayers and Byrd.1
1 Ayers and Byrd have continued
to participate in this matter as parties in interest.
2 According to Settlement III, on
October 8, 1997, Espinosa also suggested that she might file additional claims against AlliedSignal
under Florida law for intentional infliction of emotional distress. However, it does not appear that
any such tort claims were filed with a court or other agency of government.
3 Ayers and Byrd have objected
to the splitting of the original $180,000 settlement (Settlement I) into two separate agreements
apportioning only $25,000 to the whistleblower claims (Settlement II) and $150,00 to the civil
rights and other state law claims (Settlement III). Ayers and Byrd assert that the splitting of the
financial settlement was devised to defraud them of their recovery of attorney fees on the
whistleblower claims.
4 The pleading is styled as the
Motion of Parties in Interest Susan R. Byrd and Carroll E. Ayers to Supplement Their Petition for
Attorneys Fees Based Upon Newly Discovered Evidence and Opposition to Approval of the
Recommendation of the Administrative Law Judge.