U.S. Department of Labor Office of Administrative Law Judges
2600 Mt. Ephraim Avenue
Camden, New Jersey 08104
DATE: January 22, 1990
CASE NO. 89-CAA-3
IN THE MATTER OF
JAMES TINSLEY
Plaintiff
v.
179 SOUTH STREET VENTURE
Respondent
Charles A. Affaunt, Esquire
For the Plaintiff
Eugene P. Maguire, Esquire
For the Defendant
BEFORE: PAUL H. TEITLER
Administrative Law Judge
RECOMMENDED DECISION AND ORDER ON REMAND
APPROVING SETTLEMENT AND DISMISSING COMPLAINT
On April 4, 1989, the undersigned issued a Recommended
Decision and Order Approving Settlement and Dismissing Complaint. The Secretary of Labor,
on August 3, 1989 remanded the case for receipt of a settlement agreement executed by the
parties or for issuance of a recommended decision and order on the merits of the case.
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Procedural History
This proceeding was commenced pursuant to the provisions of the
Clean Air Act (hereinafter "the Act"), 42 U.S.C.A. §7622 and its
implementing regulations, 29 C.F.R. Part 24.1-24.9. The complaint,
dated November 25, 1988, alleged:
A. At all relevant times up to and including October 25, 1988
Plaintiff was employed as a superintendent for Defendant. His place
of employment and activity was 179 South Harrison Street, East Orange,
New Jersey. He was employed from the time that Defendants purchased
the premises until October 25, 1988.
B. On or about August 26, 1988 Defendants attempted to
unlawfully remove asbestos located at 179 South Harrison Street in
connection with boiler repairs.
C. On or about the same date, Defendants requested Plaintiff to
discard the asbestos by placing the same on the curb for ordinary
garbage disposal.
D. Plaintiff refused to take such action. Thereafter,
Plaintiff, along with several others, contacted the local media, East
Orange Board of Health, United States Environment Protection Agency as
well as the State Environment Protection Agency to advise them of the
hazardous condition and attempted unlawful disposal.
E. Additionally, Plaintiff made several statements about
Defendant's unlawful and hazardous activities to Ms. Gloria Rojas of
NBC's Channel 41.
F. Thereafter, Defendant's agents informed Plaintiff that his
services were no longer needed and that he had been terminated.
G. Defendant's actions were in retaliation for Plaintiff
assisting in or participating in the enforcement of the purposes of
the Clean Air Act.
The complainant sought relief as follows:
1. That the U.S. Secretary of Labor and/or his designated
representative determine that his termination and subsequent removal
as superintendent of 179 South Harrison Street, East Orange, New
Jersey is contrary to the provisions of 42 U.S.C.A. § 7622 and in
violation of the Clean Air Act;
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2. That Plaintiff be restored to his position of superintendent
with back pay, benefits and other privileges associated with the
position of superintendent of 179 South Harrison Street;
3. That Plaintiff be entitled to reasonable attorney fees; and
4. Such other relief as the Secretary of Labor and/or his
designee deems appropriate.
The Department of Labor conducted an investigation in this matter
and informed Complainant of the results by letter dated December 27,
1988. They determined that Mr. Tinsley's services were terminated on
October 25, 1988 as his complaint stated. Mr. Tinsley's claim was
denied on the ground that... "The statutory language of the Clean Air
Act required that the complaint be filed with the Secretary of Labor
within 30 days after the alleged violation occur." "Your complaint
was filed after the 30 day period." In fact, the complaint was filed
on November 25, 1988 which was 31 days after the termination on
October 25, 1988.
The Claimant was advised that this decision could be appealed to
the Chief Administrative Law Judge, U.S. Department of Labor, by
telegram within five days after the receipt of the letter dated
December 27, 1988.
Mr. Tinsley's counsel, John I. Porter, Esquire, filed a timely
appeal by telegram dated January 9, 1989.
The case was heard on February 23, 1989 in New York City.
Settlement Agreement
On November 1, 1989, the parties resolved the dispute and entered
into a settlement agreement as follows:
1. The Respondent agreed to pay the
Complainant the sum of $2,000.00.
2. The sum will be paid in four (4) $500.00 monthly payments payable
in four (4) consecutive months.
3. The first month of payment will begin upon execution of
the Release by the Complainant.
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4. The Complainant executed the Release on November 1,
1989. A copy of this Release is attached as Joint Exhibit 1.
In conclusion, I find that the settlement reached by the parties is
fair, adequate and reasonable.
RECOMMENDED ORDER
It is ORDERED that the settlement be approved and the complaint be
dismissed.
