DATE: FEBRUARY 25, 1998

CASE NO: 97-CAA-7

In the matter of

DAVID LEWIS
    Complainant

U.S. ENVIRONMENTAL PROTECTION
AGENCY
    Respondent

Before: MICHAEL P. LESNIAK
Administrative Law Judge

   On October 29, 1996, Complainant filed a complaint with the Wage and Hour Division, U.S. Department of Labor alleging discrimination in retaliation for protected activity under the Clear Air Act (CAA) at 42 U.S.C. §7622, the Safe Drinking Water Act (SDW) at 42 U.S.C. § 300j-9, the Solid Waste Disposal Act (SWDA) at 42 U.S.C. §6971, the Water Pollution Control Act (WPCA) at 33 U.S.C. §1367, the Superfund Law at 42 U.S.C. §9610, and the Toxic Substance Control Act (TSCA) at 15 U.S.C. §2622. The Wage and Hour Division investigated Complainant's allegations and, in an undated 1997 letter from Gregory R. Holt, District Director, of the Wage and Hour Division's Atlanta Office to Henry L. Longest, II, EPA's Deputy Assistant Administrator for Management, determined that based on the evidence reviewed, Complainant had been discriminated against as a result of his protected activity.

   On January 14, 1997, EPA filed a request for a hearing before the Department of Labor's Office of Administrative Law Judges (OALJ) and on January 13, 1997, Complainant requested a hearing before the OALJ.

   The trial was scheduled for September 16, 1997 through September 19, 1997 in Alexandria, Virginia. At said time and place, the parties entered into settlement negotiations and signed a Settlement Agreement on September 17, 1997. This Settlement Agreement was subject to EPA's Office of Research and Development Peer Review Panel recommending and Lawrence Reiter's approval of Dr. Lewis' promotion to the GS-15 level.

   On February 11, 1998, the parties submitted a Joint Motion to Approve Settlement and Dismiss the Complaint. Said Motion indicates that the parties agree that the Settlement Agreement is effective and the parties' September 17, 1997 letter to me making the

approval of the settlement contingent upon Complainant's promotion is no longer in effect. Further, said Motion indicates that the parties have agreed that their respective obligations under 2(b) and 2(c) of the Settlement Agreement are no longer applicable and that each party is released from such obligations. However, the Settlement Agreement language does not need to be altered in any manner and should be approved as written. The parties request that a Recommended Decision and Order Approving the Settlement be issued and that the matter be forwarded to the Administrative Review Board for approval.

   My review of the Settlement Agreement is limited to a determination of whether its' terms are fair, adequate and reasonable settlement of the Complainant's Complaint concerning violations of the various statutes mentioned above. The basic criteria is whether the Settlement adequately protects the whistleblower. Further, the Settlement must not be contrary to the public interest.

   After consideration of the Settlement Agreement and the representations of the parties, I find the Agreement to be fair, adequate and reasonable, and I believe it is in the public interest to adopt the Settlement Agreement as a basis for the administrative disposition of this matter. Therefore, I recommend dismissal with prejudice of the outstanding issues involving the Complainant and the Respondent.

         Respectfully submitted,

      MICHAEL P. LESNIAK
      Administrative Law Judge

NOTICE: This Recommended Order and the administrative file in this matter will be forwarded for final decision to the Administrative Review Board, United States Department of Labor, Room S-4309, Frances Perkins Building, 200 Constitution Ave., N.W., Washington, D.C. 20210. See 61 Fed. Reg. 19978 and 19982 (1996).

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