Date: June 3, 1996
Case Nos.: 96-TSC-4
In the Matter of:
James Schooley
Complainant
v.
Alyeska Pipeline Service Company and
Chugach North Technical Services
Respondents
Appearances:
No Appearance
For Complainant
Samuel T. Perkins, Esq.
Robert E. Jordan, III, Esq.
For Respondents
Before: DAVID W. DI NARDI
Administrative Law Judge
RECOMMENDED ORDER DISMISSING APPEAL WITH PREJUDICE
This complaint was filed by Complainant under the Employee
Protection Provisions of the Toxic Substances Control Act of
1976, 15 U.S.C. § 2622, the Water Pollution Control
Act, 33 U.S.C. § 1367, the Solid Waste Disposal Act, 42
U.S.C. § 6971, and the Clean Air act, 42 U.S.C. § 7622,
on August 22, 1995 with the Wage and Hour Division, U.S.
Department of Labor, Seattle, Washington and Robert C. Backer,
Assistant District Director, by letter dated October 17, 1995
(ALJ EX A), advised Complainant that his allegations could not be
substantiated for the following reasons:
An investigation of your complaint revealed
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that Chugach North Technical Services operated as an employment
agency for Alyeska Pipeline Service Company during the period
covered by your August 22, 1995 complaint. It was not possible
to identify any illegal practices engaged in by the firm. It is
also apparent that Alyeska jobs serviced by the firm during the
period covered by your August 22, 1995 complaint are also
included in the settlement with Alyeska Pipeline Service Company,
Arctic Slope Inspection Services and Veco Engineering, Inc.
Complainant timely filed an appeal with the Office of
Administrative Law Judges and the matter was assigned to this
Administrative Law Judge for appropriate action on November 14,
1995. (ALJ EX B)
The parties were then DIRECTED to file, within sixty
(60) days of receipt of an ORDER issued on November 17,
1995 (ALJ EX C), a status report on the procedural posture of
this case, i.e., whether Mr. Backer is correct in his
statement "that Alyeska jobs serviced by the firm during the
period covered by (Complainant's) August 22, 1995 complaint are
also included in the settlement terms of (the) just approved
whistle blower settlement with Alyeska Pipeline Service Company,
Arctic Slope Inspection Services and Veco Engineering, Inc."
The parties were further advised, if Mr. Backer is correct,
to file an appropriate document, signed by all necessary
parties, attesting to such fact.
If not, the parties were directed to file appropriate pre-
hearing exchanges and the matter would then be scheduled for
hearing in Anchorage, Alaska
Alyeska Pipeline Service Company timely filed the following
response (ALJ EX D):
"On November 17, 1995, the Administrative Law Judge issued
an order directing the parties to file a status report in the
above-captioned proceeding. The purpose of the status report was
to address the issue of whether Richard C. Backer, Assistant
District Director, Wage and Hour Division, U.S. Department of
Labor, was correct in determining that "Alyeska jobs serviced by
[Chugach North Technical Services] during the period covered by
[complainant's] August 22, 1995 complaint are also included in
the settlement terms of [the] just approved whistle blower
settlement with Alyeska Pipeline Service Company, Arctic Soope
Inspection Services and Veco Engineering, Inc." November 17,
1995 Order at 2. For the reasons set forth below, Alyeska
believes there is no real
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doubt that any Alyeska jobs referred to in complainant James
Schooley's complaint are covered by the settlement agreement to
which Mr. Backer referred. There is, however, a difficulty in
complying with the Court's directive that all parties sign and
file an appropriate document attesting to the fact, and Alyeska
respectfully suggests an alternative approach to reach the same
goal.
"The settlement agreement to which Mr. Backer referred was
submitted to Judge Di Nardi for approval with regard to Case Nos.
94-TSC-10 AND 95-TSC-12, and to Judge Lindeman for approval with
regard to Case No. 95-TSC-13. Judges Di Nardi and Lindeman
subsequently recommended approval of the settlement and on
October 3, 1995, the Secretary of Labor issued a Final Order
approving the settlement and dismissing those proceedings.
"Paragraph 9 of the settlement agreement recited Mr.
Schooley's release of "any and all claims, demands or causes of
action" against Alyeska and other respondents "whether known or
unknown, and whether or not in litigation, which [Mr. Schooley]
may have asserted or which could be asserted by another on his
behalf, based on any action, omission, or event, that existed or
occurred prior to the date of his execution of this Settlement
Agreement." Mr. Schooley executed the settlement agreement on
August 22, 1995. Because the complaint executed by Mr. Schooley
that is now before Judge Di Nardi was also dated August 22, 1995,
it follows that any Alyeska jobs that are the subject of that
complaint are also covered by the release of claims quoted above.
Further, by paragraph 5 of the settlement agreement, Mr. Schooley
agreed that his employment with any of the respondents was
"irrevocably terminated," and that "he will not at any time in
the future submit a resume, or any form of application for
employment to any respondent . . . , directly or through a third
party." Thus, to the extent that Mr. Schooley's complaint might
be seen as raising an issue with respect to Alyeska jobs open
after August 22, 1995, the settlement agreement also covers those
positions.
"On January 6, 1996, counsel for Alyeska sent a letter to
Billie P. Garde, Mr. Schooley's counsel in the cases that are
listed above, setting forth Alyeska's interpretation and
requesting that she countersign the letter if she agreed with
that interpretation. Ms. Garde has countersigned the letter, a
copy of which is attached hereto.
"It is important to note, however, that Ms. Garde has
informed counsel for Alyeska that she is not representing Mr.
Schooley in this proceeding. Thus, while Alyeska understands
that she has
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provided Mr. Schooley with a copy of the letter and informed him
of her intention to sign it, she is not executing the letter in
the capacity of current counsel for Mr. Schooley.
"Under the circumstances, Alyeska is reluctant to approach
Mr. Schooley directly on this matter while he is either not
represented by counsel, or represented by counsel who has not yet
entered an appearance. Alyeska therefore respectfully requests
that this Court enter an Order to Show Cause in order to afford
Mr. Schooley, pro se, or by a new counsel, an opportunity
to respond to the Order of November 17, 1995." (ALJ EX D)
On March 5, 1966 I issued an ORDER TO SHOW CAUSE
wherein I stated as follows (ALJ EX E):
"The Respondent filed its status report on February 14, 1996
with the Docket Clerk of the Boston District and counsel for the
Alyeska Pipeline Service Company, Attorney Robert E. Jordan, III,
and Complainant's former counsel, Attorney Billie Pirner Garde,
have rendered their opinion that Paragraph 9 of the settlement
agreement intended to foreclose the present claim involved in the
proceeding before me. However, as Attorney Garde does not
represent Complainant in this matter and as no reply has yet been
received from Complainant, the Complainant is hereby DIRECTED
TO SHOW CAUSE and to file a report within twenty (20) days of
receipt of this order as to his understanding on this open issue.
In the event that Complainant retains the services of an attorney
to advise him on this question, such attorney shall file a Notice
of Appearance as soon as possible with our Docket Clerk, with
copies to the interested parties."
As of this date, Complainant has not yet favored this Court
with a response to any of the ORDERS issued by this
Administrative Law Judge.
Accordingly, in view of the foregoing, I find and conclude
that Complainant has abandoned his appeal of the October 17, 1995
RECOMMENDATION of Assistant District Director Robert C. Backer
(ALJ EX A) and that a dismissal of the appeal is appropriate
herein, pursuant to 29 C.F.R. §18.39(b).
Therefore, in view of Complainant's failure to respond,
personally or through counsel, or to contact this Administrative
Law Judge, it is RECOMMENDED that the appeal filed herein
by Complainant shall be and the same hereby is DISMISSED WITH
PREJUDICE, pursuant to 29 C.F.R. §18.39(b).
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DAVID W. DI NARDI
Administrative Law Judge
Boston, Massachusetts
DID/Las
