Therein, the Board rejected the undersigned's
recommendation that this matter be dismissed. After reweighing the evidence, the Board found that
both legitimate and "illegitimate" reasons contributed to the adverse action taken by
Respondent (BD&O at 8). The Board further found that Respondent had failed to prove by clear and
convincing evidence that it would have taken the same action in the absence of Complainant's
protected activity (BD&O at 8). The matter was remanded to the Office of Administrative Law
Judges "for a recommended decision on an appropriate remedy" (BD&O at 9,
citing 42 U.S.C. § 5851(b)(2)(B)).
On May 12, 1997, I issued an Order on Remand, granting the parties thirty
(30) days in which to discuss the possibility of reaching a settlement on the remedy issue.
Otherwise, the parties were to submit written briefs on the issue on or before June 11, 1997.
This office was contacted by Complainant's counsel on June 9, 1997. At that
time, counsel indicated that the parties were close to reaching a settlement. Based upon this
representation, the parties were granted a one-week extension for the submission of briefs.
On June 13, 1997, a letter from Complainant's counsel was received via
facsimile, a letter in which counsel indicated that the parties had in fact reached a tentative
settlement. The parties' settlement application was received in this office on July 11, 1997.
The Settlement Agreement
The parties I settlement application includes a "Settlement
Agreement" which appears to have been executed by Complainant, counsel for Complainant,
and Respondent's Deputy Director. Also included is a memorandum from the U.S. Department of
Energy to Respondent, authorizing the settlement, a "Joint Stipulated Request for Order
Approving Settlement and Dismissal with Prejudice," and a draft "Final Order
Approving Settlement Agreement and Dismissing Case."
In pertinent part, the Settlement Agreement provides for the following
payments by Respondent:
[Page 3]
Damages and-Costs to Complainant
One year of back wages: $19,993.00
Mental and emotional distress damages: $10,000.00
Reimbursement of health insurance: $ 1,882.00
Costs, reimbursements, per diems, etc. $ 1,710.07
Total to Complainant $33,585.07
Fees to Government Accountability Project $32,572.50
Fees to Thad M. Guyer, Esq. $32,572.50
Costs to Government Accountability Project $ 6,269.92
Total to Complainant's Attorneys $71,414.93
Total Settlement Amount $105,000.00
The agreement further provides that Complainant agrees to release all claims against Respondent
arising out of the instant litigation, while Respondent agrees to abandon its rights to seek judicial
review of this matter.
I have carefully reviewed the parties I Settlement Agreement and hereby find
that it is fair, adequate, and reasonable in light of the record evidence and the ARB's April 23, 1997,
decision. As such, I shall recommend approval of the same.
RECOMMENDED ORDER
Based upon the foregoing, and pursuant to 29 C.F.R. § 24.6 (1994), the
undersigned HEREBY RECOMMENDS that the Administrative Review Board, acting
under the delegation of authority from the Secretary of the United, States Department of Labor, issue
a final order approving the parties' Settlement Agreement and dismissing the above-captioned matter
with prejudice.
Entered this 14th day of July, 1997, at Long Beach, California.
DANIEL L. STEWART
Administrative Law
Judge
[ENDNOTES]
1 Although the case has been
designated as one arising under the Clean Air Act (CAA), the parties agreed, and I concur, that
the facts presented implicate the whistleblower protection provision of the Energy
Reorganization Act.
2 Authority to issue final agency
decisions under the ERA was delegated to the Administrative Review Board on April 17, 1996.
See Secretary's Order 2-96 (Apr. 17, 1996), 61 Fed. Reg. 19978 (May 3, 1996).