WHISTLEBLOWER NEWSLETTER

Office of Administrative Law Judges
United States Department of Labor

June 4, 1996

ADMINISTRATIVE REVIEW BOARD; ESTABLISHMENT
[N/E Digest VIII B 1 d]

Effective May 3, 1996, the Administrative Review Board replaced, inter alia, the Office of Administrative Appeals. Secretary's Order 2- 96, 61 Fed. Reg. 19978 (published in the Federal Register on May 3, 1996, but originally issued on April 17, 1996); Final Rule, Establishment of the Administrative Review Board, 61 Fed. Reg. 19982 (May 3, 1996). The Administrative Review Board has been delegated the authority to issue final agency decisions in cases in which the Office of Administrative Appeals only provided assistance and advice. The Administrative Review Board's address is:

Administrative Review Board
United States Department of Labor
Room S-4309
200 Constitution Ave, NW
Washington, DC 20210
Phone: (202) 219-4728

ADVERSE EMPLOYMENT ACTION; LITIGATION TACTICS; OFFER OF SETTLEMENT WITH GAG PROVISION
[N/E Digest XIII B 18]

The Second Circuit in The Connecticut Light & Power Co. v. Secretary of the United States Dept. of Labor, No. 95-4094 (2d Cir. May 31, 1996)(available at 1996 U.S. App. LEXIS 12583)(case below 89-ERA-38), affirmed the Secretary's holding that proffering a settlement agreement containing a provision that attempts to restrict an employee's ability to cooperate with administrative and judicial bodies violates section 210 of the ERA. The court observed that "[a]lthough the act of inducing an employee to relinquish his rights as provided by the ERA through means of a settlement agreement is less obvious than more direct action, such as termination, it is certainly aimed at the same objective: keeping an employee quiet." 1996 U.S. App. LEXIS at *17.

ADVERSE EMPLOYMENT ACTION; PSYCHOLOGICAL EVALUATION
[N/E Digest XIII B 18]

In Diaz-Robainas v. Florida Power & Light Co., 92-ERA-10 (Sec'y Apr. 15, 1996)(order denying motion for reconsideration), the Secretary reaffirmed his holding in Diaz-Robainas v. Florida Power & Light Co., 92-ERA-10 (Sec'y Jan. 19, 1996), that making a psychological evaluation a condition of continued employment constitutes adverse employment action. The Respondent, in a motion for reconsideration, maintained that only "ultimate" actions taken by an employer may constitute actionable adverse action, or at least that a psychological evaluation order must lead to discharge or further adverse action.

The Respondent cited Page v. Bolger, 645 F.2d 227 (4th Cir. 1981), cert. denied, 454 U.S. 892 (1981), for the proposition that only ultimate action may constitute an actionable adverse action. The Secretary, however, held that Page's discussion of ultimate and mediate employment decisions was merely a criticism of the plaintiff's attempt to shift the focus of the pretext analysis from the reasons for his failure to be promoted to the reasons for the absence of any black members on the promotion review committee -- a personnel action that neither affected Page directly nor constituted the employment action initially or ultimately challenged by Page. The Secretary also observed that Page was a Title VII action.

The Secretary held that actionable discrimination is not limited to economic harm. The Secretary also observed that merely potential adverse affects are actionable, such as an adverse work evaluation that has the potential to harm a complainant's chances for job security or advancement.

The Respondent also maintained that the Secretary's holding was contrary to Mandreger v. Detroit Edison Co., 88-ERA-17 (Sec'y Mar. 30, 1994), and several federal court decisions. The Secretary, however, distinguished those cases on their facts, several on the ground that the employee had been shown to have exhibited aberrant behavior in the workplace -- in effect, failing thereby to meet the ultimate burden to prove that the referral was a retaliatory adverse action. In contrast, in Diaz-Robainas, the record did not substantiate that the Complainant engaged in abnormal or aberrant behavior suggestive of any risk to public safety and health. The Secretary observed that lack of observed abnormal or aberrant behavior in Diaz-Robainas meant that the decision did not undermine the employer's duty to participate in the NRC's behavioral observation program and to refer or remove an employee whose fitness it questions. See 10 C.F.R. § 26.27(b)(1).

CERCLA NOW GOVERNED BY 29 C.F.R. PART 24
[N/E Digest I A 1]

In a Final Rule establishing the Administrative Review Board, 29 C.F.R. § 24.1 was changed to specifically include the Comprehensive Environmental Response, Compensation and Liability Act of 1980, 42 U.S.C. 9610 as one of the employee protection provisions implemented by Part 24. Final Rule, Establishment of the Administrative Review Board, 61 Fed. Reg. 19982, 19985 (May 3, 1996).

EXEMPLARY DAMAGES; COMPARATIVE AWARD
[N/E Digest XVI F]

In Ruud v. Westinghouse Hanford Co., 88-ERA-33 (ALJ Mar. 15, 1996), the ALJ recommended that exemplary damages not be awarded because the only statutes under which he found jurisdiction did not provide for such damages. Assuming that it was proper to award exemplary damages, however, the ALJ concluded that an award of exemplary damages of $12,500 was appropriate. The ALJ arrived at this figure by comparing the facts and recommended award in the case of Varnadore v. Oak Ridge National Laboratories, 95-CAA-2 (ALJ June 27, 1993). The ALJ concluded that the retaliation in the instant case was less serious than in Varnadore.

FINDINGS OF FACT; SECRETARY'S AUTHORITY TO RENDER CONCERNING ISSUE ALJ DID NOT ADDRESS
[STAA Digest II H 4 c]

In Cook v. Guardian Lubricants, Inc., 95-STA-43 (Sec'y May 1, 1996), the Secretary found that the ALJ did not address evidence concerning several pertinent issues. Since evidence had been adduced at the hearing on those issues, however, the Secretary made findings of fact on those issues rather than remanding the case. In making credibility determinations, the Secretary relied upon the relative consistency of the testimony. Citing, inter alia, Ertel v. Giroux Brothers Transp., Inc., 88-STA- 24, slip op. at 12 and n.7 (Sec'y Feb. 16, 1989).

FINDING OF VIOLATION; SECRETARY'S AUTHORITY TO RAISE VIOLATION NOT LITIGATED
[N/E Digest VIII B 2 c]

The Secretary improperly made a finding that the Respondent made a second and independent violation of the ERA when it broke off settlement negotiations at least in part because the Complainant proposed to delete a gag provision, where that issue was not litigated by the parties. The Connecticut Light & Power Co. v. Secretary of the United States Dept. of Labor, No. 95-4094 (2d Cir. May 31, 1996) (available at 1996 U.S. App. LEXIS 12583)(case below 89-ERA-38).

FORMER EMPLOYEE; COVERAGE IF THE ALLEGED DISCRIMINATION AROSE OUT OF THE EMPLOYMENT RELATIONSHIP
[N/E Digest XIV A 2 b]

In The Connecticut Light & Power Co. v. Secretary of the United States Dept. of Labor, No. 95-4094 (2d Cir. May 31, 1996) (available at 1996 U.S. App. LEXIS 12583)(case below 89-ERA-38), the court affirmed the Secretary's holding that a former employee of the Respondent was an "employee" within the meaning of the employee protection provision of the ERA because the alleged discrimination arose out of the employment relationship: an offer of settlement containing an improper gag provision.

JOINT EMPLOYER; VICARIOUS LIABILITY
[STAA Digest VII B 3]

Under the employee protection provision of the STAA, a joint employer may be held vicariously liable, even in the absence of knowing participation, for the discriminatory acts of another. Cook v. Guardian Lubricants, Inc., 95-STA-43, slip op. at 2 n.1 (Sec'y May 1, 1996), citing Palmer v. Western Truck Manpower, Inc., 85-STA-16 (Sec'y May 13, 1992), aff'd Western Truck Manpower, Inc. v. United States Dept. of Labor, 12 F.3d 151, 153-54 (9th Cir. 1993)(Ninth Circuit, however, did not reach strict liability aspect). The Secretary observed in Cook that "[k]nowing participation is not established when an employer has merely acquiesced in the discriminatory conduct of a joint employer, as 'an entirely innocent and unconscious instrument' of the perpetrating employers..." Slip op. at 29, citing Carrier Corp., v. NLRB, 768 F.2d 778, 783 (6th Cir. 1985) (quoting NLRB v. Gluek Brewing Co., 144 F.2d 847, 855 (8th Cir. 1944)). In Cook, however, the Respondent was found to have knowingly participated in the discrimination, making the strict liability aspect of this rule unnecessary to invoke.

In cases involving leasing of drivers and trucks to a separate business entity that shares employment responsibilities with the respondent employer, the two entities are deemed joint employers for the purpose of determining liability under the STAA. Slip op. at 12.

In the instant case, the Respondent had an independent contractor arrangement with the Complainant where the Respondent provided and maintained the truck tractor and paid the Complainant from revenues received from the assigned freight company. The freight companies each exercised enough control over the Complainant's day-to-day work assignments, including the authority to reject the Complainant's services, to be considered joint employers. In addition, the record established an interrelationship between the operations of the Respondent and the two transport companies, which the Secretary considered a "significant factor." In essence, the Respondent leased truck to drivers, and then drivers and trucks to freight companies, while the transport companies were engaged in the business of transporting freight. The Secretary noted that because "this case involves an independent contractor arrangement, a narrower range of employment responsibilities are involved than those discussed in Palmer." Slip op. at 13 n.10.

JURISDICTION; NATURE OF COMPLAINANT'S CONCERNS
[N/E Digest II B 2]

In Ruud v. Westinghouse Hanford Co., 88-ERA-33 (ALJ Mar. 15, 1996), the ALJ examined the nature of the Complainant's concerns and compared them against the purposes of the various environmental statutes relied upon. The Complainant had cited all of the environmental statutes covered by Part 24 and CERCLA. The ERA was not applicable because the Respondent was not a covered employer under that Act.

The ALJ found that because the Complainant was very much concerned about air pollution--especially from radioactive discharges--the CAA and CERCLA were applicable, neither of those statutes excluding radioactive emissions into the air from their coverage. The ALJ did not find jurisdiction, however, under the other environmental statutes because either the substance complained about was not covered, or because there was no evidence that the Complainant in fact had raised concerns about the substance.

JURISDICTION; COVERED SUBSTANCE
[N/E Digest II B 2]

In Balog v. Med-Safe Systems, Inc., 95-TSC-9 (ALJ Nov. 8, 1995), the Respondent moved for summary decision based on its argument that the TSCA does not cover a "sharps collector" -- a rigid plastic container used for safe storage and disposal of used syringes, needles, razor blades, and scalpels -- as a "toxic substance". 15 U.S.C. § 2602(2)(B)(vi). The ALJ noted that the TSCA expressly provides for regulation of articles containing chemical substances, 15 U.S.C. § 2605. Noting that the instruments a sharps collector is used to store are contaminated with blood and bodily fluids after use, and that such fluids can be harmful to medical personnel, the ALJ considered whether they may be considered "chemical substances" within the meaning of the TSCA, and concluded that the reference to "organic" substances in 15 U.S.C. § 2602(2)(A) clearly indicates that they are.

Because he found TSCA coverage, the ALJ found that a consideration of whether the Complainant's citation of the SWDA was proper to be irrelevant and unnecessary given that the remedies and protections of the two acts are similar, if not the same.

MOTION IN LIMINE; PROPOSED EXPERT ON "VICTIM BLAMING" WHO LACKED RELEVANT EXPERTISE AND WHOSE PROPOSED TESTIMONY WOULD BE MERE ARGUMENT ABOUT INFERENCES TO BE DRAWN
[N/E Digest VII D 2]

In Sipes v. Arctic Slope Inspection Service, 95-TSC-15 (ALJ May 31, 1996), the Complainant proposed to present an expert witness on "victim blaming" -- the phenomenon where a wrongdoer cannot directly face the wrongdoing and therefore expresses his or her guilt or discomfort about the wrongdoing by finding the victim to be the one at fault. The ALJ granted the Respondents' motion in limine to exclude this testimony pursuant to 29 C.F.R § 18.702.

The ALJ found that some of the evidence proposed appeared to be mere argument about inferences to be drawn from the facts at issue, and that the complainant had not demonstrated that the ALJ needed specialized assistance in this regard. In addition, the ALJ found that the proposed expert, despite her personal and family's unfortunate experiences with discrimination and retaliation, did not have the type of general expertise in the social sciences or psychiatry that would qualify her to testify authoritatively about "victim blaming." The ALJ concluded that although the proposed expert's testimony might have some relevance and was arguably admissible under 29 C.F.R § 18.402, it would be excluded as a waste of time under 29 C.F.R § 18.403.

MOTIVE; CANNOT DEFEND BY PLACING BURDEN TO REFUSE OVERWEIGHT LOADS SOLELY ON COMPLAINANT
[STAA Digest IV B 2 e]

A respondent who provides contract drivers to freight companies cannot absolve itself of responsibility for failing to respond to a driver's complaints about overloading by a freight customer simply by maintaining that the question of which loads to carry and which to refuse is a matter between the freight company and the driver. See Cook v. Guardian Lubricants, Inc., 95-STA-43, slip op. at 22-29 (Sec'y May 1, 1996) (Editor's note: this is a paraphrase of the Secretary's discussion of the Respondent's motive; it is not an explicit ruling).

NRC STATEMENT OF POLICY
[N/E Digest I A 2 and XII D 1 d]

On May 14, 1996, the Nuclear Regulatory Commission issued a policy statement "to set forth its expectation that licensees and other employers subject to NRC authority will establish and maintain safety-conscious environments in which employees feel free to raise safety concerns, both to their management and to the NRC, without fear of retaliation." Freedom of Employees in the Nuclear Industry To Raise Safety Concerns Without Fear of Retaliation; Policy Statement, 61 Fed. Reg. 24336 (May 14, 1996). The policy statement, inter alia, stresses that management should provide leadership in this regard, that licensees have a responsibility for the acts of their contractors, and that although free to come to the NRC at any time, employees should normally raise concerns with the involved licensee. The policy statement notes that the "NRC should normally be viewed as a safety valve and not as a substitute for raising safety concerns." 61 Fed. Reg. at 24340.

PROTECTED ACTIVITY; DISTRIBUTION OF LEAFLET AT COMPANY PICNIC
[N/E Digest XII B 2 f]

In Immanuel v. Wyoming Concrete Industries, Inc., 95-WPC-3 (ALJ Oct. 24, 1995), the ALJ recommended a finding that the Complainant's distribution of a leaflet at a company picnic that raised environmental concerns grounded in conditions reasonably perceived as violations of the FWPCA was protected activity. The ALJ found that the remedial purpose of the statute would not be served if an employer was permitted to retaliate merely because management learned of the employee's disclosure indirectly through another employee.

REFUSAL TO DRIVE; PROVING WEATHER CONDITIONS
[STAA Digest V B 2 e]

In Ass't Sec'y & Vilanj v. Lee & Eastes Tank Lines, Inc., 95-STA-36 (Sec'y Apr. 11, 1996), the complaint was based on the Complainant's refusal to drive due to adverse weather conditions. See 49 C.F.R. § 392.14. To invoke protection under 49 U.S.C. § 31105(a)(1)(B)(i), a complainant must prove that an actual violation would have occurred; a reasonable and good faith belief that it is unsafe to drive is not enough -- the weather conditions must be in fact such that a vehicle cannot be operated safely.

The Secretary, however, observed that determining whether weather conditions prohibited safe operation requires a subjective judgment. The determination is ordinarily made on the basis of information available at the time. It is not reserved to the driver alone, but it is also the duty of the carrier to determine whether the vehicle can be safely operated under existing conditions.

In Vilanj, the ALJ found that conditions were not sufficiently dangerous that the Complainant could not have safely driven a tank truck carrying hazardous materials. Although accepting that the ALJ's findings of fact were supported by substantial evidence, the Secretary disagreed with the ALJ's inferences and conclusions, and found that the Complainant should prevail.

The Secretary also relied on the fact that under an applicable collective bargaining agreement, the driver is deemed to be the best judge as to the seriousness of the situation in deciding whether to proceed.

RETALIATORY INTENT; WITNESS FOR DEFENSE'S MENDACITY AS SUPPORTING INFERENCE OF RETALIATORY INTENT
[STAA Digest III G]

Where a defense witness's testimony was inconsistent and evasive, evincing an intent to obfuscate the facts, it supported a finding of retaliatory intent. Cook v. Guardian Lubricants, Inc., 95-STA-43 (Sec'y May 1, 1996).

SETTLEMENT AGREEMENT; SIGNATURE BY SPOUSE OF COMPLAINANT
[N/E Digest XVII G 9]

In Simmons v. Arizona Public Service Co., 93- ERA-5 (ALJ Apr. 3, 1996), the ALJ noted that a person who was apparently the Complainant's spouse signed the settlement agreement and general release form. The ALJ noted that the complaint was initiated solely by the Complainant, and that DOL's jurisdiction related only to the Complainant; therefore, the ALJ's review of settlement documents was made solely from the standpoint that the Secretary's jurisdiction relates only to the named complainant, and the ALJ stated that his recommended order had no bearing on the rights of the spouse concerning any matter addressed in the settlement documents.

SETTLEMENT AGREEMENT; ESTABLISHING FRAUD
[N/E Digest XVII F]

In Ruud v. Westinghouse Hanford Co., 88-ERA-33 (ALJ Mar. 15, 1996), the parties agreed that in order to show that a settlement agreement was invalid because of fraud, a complainant must establish all elements of a fraud. The ALJ found that the Complainant must demonstrate the existence of

1. knowingly false material misrepresentations;
   
2. with intent to deceive, and
   
3. complainant's reliance thereon.

Slip op. at 75-76, citing Beckendorf v. Beckendorf, 457 P.2d 603, 606 (Wash. 1969). The ALJ found that the Complainant had the burden of establishing all elements by "clear, cogent and convincing evidence." Beckendorf, supra.

SETTLEMENT AGREEMENT; EFFECT OF NONDISCLOSURE PROVISION ON ENFORCEABILITY
[N/E Digest XVII E 1]

In Ruud v. Westinghouse Hanford Co., 88-ERA-33 (ALJ Mar. 15, 1996), the Complainant took the position that the settlement agreement was void because it contained a provision that the terms of the settlement should remain "strictly confidential and shall not be disclosed to any other person." The Complainant's theory was that this provision precluded submission of the settlement to the Secretary of Labor, and that because submission to the Secretary is a precondition to the validity of the agreement, the settlement self destructed. The ALJ, however, concluded that "because disclosure to and approval by the Secretary are necessary elements of the settlement process, the agreement should not be read to prohibit disclosure to the Secretary. To do otherwise would be to attribute to the parties ignorance of the law or an intent to destroy the settlement, an absurd result." Slip op. at 78 (footnote omitted).

SETTLEMENT AGREEMENT; EFFECT OF GAG PROVISION
[N/E Digest XVII B 1 a]

The Second Circuit in The Connecticut Light & Power Co. v. Secretary of the United States Dept. of Labor, No. 95-4094 (2d Cir. May 31, 1996)(available at 1996 U.S. App. LEXIS 12583)(case below 89-ERA-38), affirmed the Secretary's holding that proffering a settlement agreement containing a provision that attempts to restrict an employee's ability to cooperate with administrative and judicial bodies violates section 210 of the ERA. The court observed that "[a]lthough the act of inducing an employee to relinquish his rights as provided by the ERA through means of a settlement agreement is less obvious than more direct action, such as termination, it is certainly aimed at the same objective: keeping an employee quiet." 1996 U.S. App. LEXIS at *17.

SETTLEMENT; FAILURE TO SHOW TOTAL AMOUNT TO BE PAID TO COMPLAINANT
[N/E Digest XVII C 1]

Where the settlement agreement presented for the Secretary's review indicated only the total amount of the settlement including attorney's fees, and there was no indication of the actual amount of money to be paid to the Complainant, the Office of Administrative Appeals ordered the parties to respond to an order pointing out that the Secretary needs to know the amount paid to the Complainant to determine whether the settlement is fair, adequate and reasonable. Carter v. Electrical District No. 2 of Pinal County, 92-TSC-11 (OAA Apr. 24, 1996).

SETTLEMENT; ATTORNEY'S FEES; IF PARTIES AGREE, SECRETARY DOES NOT NEED TO REVIEW THE AMOUNT UNDER LODESTAR METHOD
[N/E Digest XVI E 3 and XVII G 1]

If the parties are in agreement as to the amount of attorney s fees to be paid, the Secretary does not need to review the amount with the specificity usually required by the lodestar method. Carter v. Electrical District No. 2 of Pinal County, 92-TSC-11 (OAA Apr. 24, 1996), citing Hensley v. Eckerhart, 461 U.S. 424 (1983).

SETTLEMENT JUDGE PROCEDURE
[N/E Digest XVII G 9]

In Balog v. Med-Safe Systems, Inc., 95-TSC-9 (ALJ Apr. 24, 1996), the ALJ recommended approval of a settlement. Of interest is that the parties were assisted by the settlement judge procedure at 29 C.F.R. § 18.9(e) in achieving the settlement.

TIMELINESS OF COMPLAINT; INTERPRETATION OF "PRECISE STATUTORY CLAIM" FOR EQUITABLE TOLLING
[N/E Digest IV B 3]

Where the Complainant contacted a state environmental agency and a local OSHA office rather than the Wage and Hour Division within the statutory period for filing of a whistleblower complaint and gave them an account of what was going on, the ALJ concluded that these contacts did not constitute a ground for equitable tolling because the accounts did not raise the precise statutory claim, even though a lawyer might have seen in them the basis for filing a FWPCA complaint. Immanuel v. Wyoming Concrete Industries, Inc., 95-WPC-3 (ALJ Oct. 24, 1995).

To the same effect >Lawrence v. City of Andalusia Waste Water Treatment Facility, 95-WPC-6 (ALJ Dec. 13, 1995)(mere raising of factual circumstances is not the same as raising the precise statutory claim).

TIMELINESS; CONTINUING VIOLATION; DISCRIMINATORY ASSIGNMENTS
[STAA Digest II B 2 e]

Although the Complainant's complaint was filed more than 180 days after his work refusal, the Secretary held in Cook v. Guardian Lubricants, Inc., 95-STA-43 (Sec'y May 1, 1996), that the continuing violation doctrine made the complaint timely under the STAA employee protection provision because the Complainant was given discriminatory assignments in retaliation for his raising complaints about overweight shipments. Those assignments were less profitable, and directly contributed to the Respondent's eventual termination of Complainant's employment because the truck was not being kept sufficiently busy.

TIMELINESS OF COMPLAINT; CONTINUING VIOLATION THEORY; SETTLEMENT OFFER
[N/E Digest III C 1]

In The Connecticut Light & Power Co. v. Secretary of the United States Dept. of Labor, No. 95-4094 (2d Cir. May 31, 1996) (available at 1996 U.S. App. LEXIS 12583)(case below 89-ERA-38), the Respondent asserted that the Complainant's complaint, which was based on the proffer of a settlement agreement containing an illegal gag provision, should be time-barred because it was filed more than thirty days after the settlement agreement was received. The Secretary of Labor had held that the complaint was not time-barred by focusing on the letter breaking off negotiations.

The Second Circuit noted that the ERA limitations period generally begins to run from the date that a complainant learns of the employer's final decision, but concluded that application of this rule was inappropriate given the nature of the violation: the adverse action in question is not a discrete decision taken by an employer, but rather a negotiation tactic, employed over a period of months, by which the Respondents attempted to coerce Complainant into agreeing to a gag provision. Rather, the court determined that it would apply the continuing violation standard.

The court held that the continuing violation rule applies where the plaintiff proves i) an underlying discriminatory policy or practice, and ii) an action taken pursuant to that policy during the statutory period preceding the filing of the complaint. The court found that the two prongs applied to the facts of the instant case. The court rejected the Respondent's focus on the date the Complainant received the settlement proposal, both on the basis of contract law, and because the court viewed "the violation to encompass the negotiations process as a whole, and not just one particular product of the negotiations." 1996 U.S. App. LEXIS at *23. The court stated that

[t]he discussion of offer and rejection, while preclusive with respect to [the Respondent's] argument, misses the appropriate timing focus--the negotiation tactic employed by [the Respondent] throughout the process. Therefore, we hold that the Secretary properly ruled that the complaint was timely because the last act pursuant to an ongoing, discriminatory policy occurred within the statutory period when [the Respondent] revoked its outstanding settlement offer . . . .

1996 U.S. App. LEXIS at *23.

TRIAL MANAGEMENT; BIFURCATED HEARING ON LIABILITY AND DAMAGES
[N/E Digest VII D 6]

In Masek v. The Cadle Co., 95-WPC-1 (ALJ Mar. 11, 1996), the ALJ had ordered that the hearing would be bifurcated as to the issues of liability and damages. In his March 11, 1996 recommended decision, the ALJ concluded that the Complainant was entitled to relief, and ordered that the parties consult regarding a time and place for a hearing on damages to be held within 120 days. The ALJ also directed the parties to discuss whether a settlement of damages was possible, and whether the testimony or other evidence on damages could be taken by deposition and/or affidavit.

VOLUNTARY DISMISSAL; COMPLAINANT'S DECISION NOT TO CONTEST ALJ'S RECOMMENDED DECISION AND ORDER CONSTRUED AS VOLUNTARY DISMISSAL
[N/E Digest XVIII A 1]

Where the Complainant filed a statement with the Secretary that he did not want to contest the ALJ's Recommended Decision and Order to dismiss his case, the Secretary treated this motion to withdraw the complaint as a voluntary dismissal governed by Fed. R. Civ. P. 41. Plumlee v. Exxon Chemical Co., 95-TSC-11 (Sec'y Apr. 15, 1996).