DATE: September 11, 1995
CASE NO. 93-SWD-3


IN THE MATTER 0F

NORMAN D. MERRITT,

          COMPLAINANT, 

     v.

MISHAWAKA MUNICIPAL UTILITIES, 
THE CITY OF MISHAWAKA,

          RESPONDENT.


BEFORE:   THE SECRETARY OF LABOR


                         FINAL DECISION AND ORDER

     Before me for review is the Recommended Order of Dismissal
issued on March 24, 1995, by the Administrative Law Judge (ALJ)
in this case arising under the employee protection provisions of
the Safe Drinking Water Act, 42 U.S.C. § 300(j)-
9(i)(1988)(SDWA).  The ALJ recommended that the complaint against
Respondent be dismissed with prejudice.  I agree. 
     On January 4, 1993, Complainant Merritt filed a complaint
with the U.S. Department of Labor regarding his allegedly
unlawful termination by the Respondent for engaging in 
whistleblower activities.  On January 29, 1993, Merritt, in
consideration of $10,000, signed an agreement releasing the
Respondents "of and from any and all claims, be the same known or
unknown, of whatever kind or nature, which the Releasor [Merritt]
may now have or hereafter acquire by reason of any events
occurring prior to the date of this agreement. . . ."   
     The agreement specifically released a case then pending in
the U.S. District Court in the Northern District of Indiana that
Merritt initiated against the Respondents, and specifically 
[PAGE 2]
excepted a potential workman's compensation claim he was
apparently contemplating filing against the Respondents.  
     Although the agreement does not mention Merritt's pending
whistleblower claim against the Respondents, the language of the
release is so broadly constituted that, given the temporal
proximity of his whistleblower complaint and his obvious
knowledge that he could reserve a cause of action, it is 
reasonable to infer that Merritt understood that the release
included the whistleblower action.  
     In point of fact, Merritt's submissions before me are silent
with regard to any allegation that the ALJ misconstrued the
breadth of the release by including the whistleblower action. 
Merritt's singular complaint before me is that Respondents
wrongfully modified the agreed upon response to be used in
answering inquiries from potential employers regarding him. 
Merritt alleges that Respondents modified the response by
personalizing the letter to the requesting party and by having
the letter signed by Respondents' General Manager instead of the
Director of Human Resources.  Merritt does not allege that the
Respondents materially changed the body of the letter, therefore
I conclude that Merritt's objections are without substance.  
     Review of the agreement reveals that it may encompass the
settlement of matters under laws other than the SDWA.  See
Agreement at 1-2.  As stated in Poulos v. Ambassador Fuel Oil
Co., Inc., Case No. 86-CAA-1, Sec. Order, Nov. 2, 1987, slip
op. at 2:
     [The Secretary's] authority over settlement agreements is
     limited to such statutes as are within [the Secretary's]
     jurisdiction and is defined by the applicable statute. 
     See  Aurich v. Consolidated Edison Company of New York,
     Inc.,  Case No. [86-]CAA-2, Sec. Order Approving
     Settlement, issued July 29, 1987; Chase v. Buncombe
     County, N.C., Case No. 
     85-SWD-4, Sec. Order on Remand, issued Nov. 3, 1986.
I have therefore, limited  my review of the agreement to
determining whether the terms thereof are a fair, adequate and
reasonable settlement of Complainant's allegations that
Respondents violated the SDWA. 
     I further determine that even if one could remotely consider
the reasonable changes of the response letter to be outside the
scope of the settlement agreement, which I do not, the alleged
breach is not sufficient to in any way affect my determination of
the fairness, adequacy and reasonableness of the agreement.  I
therefore concur with the ALJ's finding that the agreement signed
by the parties is fair, adequate and reasonable as a basis for
dismissing the complaint with prejudice.  See Macktal v.
Secretary of Labor, 923 F.2d  1150, 1153-54 (5th Cir. 1991);
Thompson v. U.S. Dep't of Labor, 885 F.2d 551, 556 (9th
Cir. 
[PAGE 3]
1989); Fuchko and Yunker v. Georgia Power Co., Case Nos.
89-ERA-9, 89-ERA-10, Sec. Order, Mar. 23, 1989, slip op. at 1-2. 

     I further concur with the ALJ's determination that the
January 29, 1993, agreement was intended to settle the
whistleblower action.  Macktal, 923 F.2d at 1156-58.      
Accordingly, the complaint is DISMISSED WITH PREJUDICE.
     SO ORDERED.


                              ROBERT B. REICH
                              Secretary of Labor

Washington, D.C.