DATE: MARCH 3, 1993

CASE NO: 93-CAA-0003

In the Matter of

HECTOR R. RIVERA,
    Complainant

    v.

BRISTOL-MYERS BARCELONETA, INC.,
    Respondent

BEFORE: E. EARL THOMAS
    DISTRICT CHIEF JUDGE

EFRAIN MACEIRA ORTIZ,ESQ.
RICK NEMCIK CRUZ, ESQ.
Hato Rey, Puerto Rico
   For the Complainant

FRANCISCO CHEVERE, ESQ.
RAFAEL J. VAZQUEZ GONZALEZ, ESQ.
San Juan, Puerto Rico
    For the Respondent

BEFORE: E. EARL THOMAS
    District Chief Judge

    This proceeding arose under the employee protection provision of the Clean Air Act, 42 U.S.C. §7622 (1982), and the implementing regulations at 29 C.F.R. Part 24 (1988). Complainant, Hector R. Rivera, filed a complaint

with the Secretary of Labor on October 19, 1992 alleging that he was a protected employee engaged in a protected activity within the scope of the Act, and was a victim of discrimination as a result of this activity.

    A compliance investigation was conducted by the Puerto Rico Office of the Wage and Hour Division of the Employment Standards Administration. In a letter of November 17, 1992, the District Director announced his determination that "the only possible rationale found for the employee's dismissal is for having complained about environmental issues to the firm (Respondent)." See Sanabria letter, p.2, November 17, 1992. The District Director concluded that Complainant was entitled to reinstatement, back wages, legal fees, $300,000 in compensatory damages, and other relief. Respondent requested a formal hearing on November 25, 1992, and the case was assigned for adjudication on December 8, 1992. The parties were notified of an opportunity for immediate hearing, but requested that the hearing be deferred pending settlement negotiations. On March 1, 1993, this office received a "Stipulation for Dismissal with Prejudice" to which was attached a "Settlement Agreement and Release."

    The agreement provides that upon the issuance of an order dismissing the claim with prejudice, Respondent will pay Complainant the sum of $8,000. The parties further agree to a mutual release of all claims and liability arising under not only the Clean Air Act, but also numerous other employee protection statutes listed on page 3 of the agreement. The parties agree to keep the matter of the agreement confidential and Complainant agrees not to apply for re-employment in any capacity with Respondent. There are further aspects of the agreement which need not be discussed for purposes of this recommendation.

    It is noted that in various final orders approving settlements in which violations of laws in addition to the Clean Air Act are alleged, the Secretary has limited review of the agreements to determining whether their terms are a fair, adequate and reasonable settlement of Complainant's allegations under the Clean Air Act. See, e.g. Poulos v. Ambassador Fuel Oil Co.. Inc., Case No. 86-CAA-1, Sec. Order, Nov. 2, 1987, slip op. at 2. A similar concern is recognized in Anderson v. Waste Management of New Mexico, Case No. 88-TSC-2, Sec. Final Order Approving Settlement, Dec. 18, 1990, slip op. at 2, where the Secretary honored the parties' confidentiality agreement except where disclosure may be required by law.

    Additionally, the Secretary has interpreted provisions such as the one in this agreement, which specify interpretation under the laws of Puerto Rico, as not limiting the Secretary's authority under the statute and regulations. See Phillips v. Citizens Assoc. for Sound Energy, Case No. 91-ERA-25, Sec. Final Order of Dismissal, Nov. 4, 1991, slip op. at 2. Also, the implementing regulations, as interpreted by the Secretary, provide only for dismissals for cause, and do not provide for voluntary dismissals of complaints. See Cornish v. Consolidation Edison Company of New York. Inc., Case No. 88-CAA-5, Sec. Order of Dismissal, Sept. 29, 1989, slip op. at 2. 29 C.F.R. §24.5(e)(4).

    Although there is a considerable difference in the amount of money which the District Director found appropriate and the amount agreed upon by the parties, I have no basis on which to recommend that the agreed amount is not fair, adequate or reasonable. Nor do I have reason to believe the other provisions in the agreement are not

appropriate. In this regard, it is noted that Complainant is represented and advised by counsel.

    Subject to the limitations discussed above, and observing that the parties are represented by counsel, it is hereby RECOMMENDED that the Secretary of Labor find the terms of the agreement to be fair, adequate, and reasonable, and therefore, approve the Settlement Agreement and Release. It is further RECOMMENDED that the complaint be dismissed with prejudice.

So ORDERED.

       E. Earl Thomas
       District Chief Judge

EET/pcc
Ft. Lauderdale, FL