U.S. Department of Labor Office of Administrative Law Judges
7 Parkway Center
875 Greentree Road, Room 290
Pittsburgh, PA 15220
(412) 644-5754
DATE ISSUED: March 10, 1999
CASE NO.: 1997-ERA-51
In the Matter of
SUZANNE MCANENA
Complainant,
v.
TENNESSEE VALLEY AUTHORITY
Respondent,
Appearances:
Michael C. Subit, Esq.,
For the Complainant
Brent R. Marquand, Esq.,
For the Respondent
Before: RICHARD A. MORGAN
Administrative Law Judge
RECOMMENDED ORDER OF DISMISSAL
PROCEDURAL HISTORY
This proceeding arose under the employee protection provisions of the
Energy Reorganization Act of 1974 (the "Act"), 42 U.S.C. 5851, and the
implementing regulations at 29 C.F.R. Part 24. Complainant, Suzanne McAnena, filed a
complaint with the Secretary of Labor, on February 26, 1997, alleging that she was a protected
employee engaged in a protected activity within the scope of the Act, and was separated by the
[Page 2]
Respondent, Tennessee Valley Authority (hereinafter "TVA") as a result of this
activity.
A compliance investigation was conducted by the Atlanta, Georgia,
Occupational Safety and Health Administration (OSHA), U.S. Department of Labor. On June
10, 1997, OSHA announced its determination that while the complainant's job duties involved
activities which fell within the protections of Section 211 of the Energy Reorganization Act, the
evidence did not support that her employer harbored any animosity against her because of such
protected activities, or that any adverse employment actions were motivated in reprisal for her
engagement in such protected activities. Ms. McAnena sought a hearing before an
administrative law judge.
I was assigned the matter on June 25, 1997 and issued a Notice of Hearing
on July 3, 1997. The hearing, scheduled for November 13, 1997, was continued several times.
On February 26, 1998 this matter was stayed because of a related administrative Equal
Employment Opportunity ("EEO") complaint. The hearing was finally scheduled for
June 8, 1999.
TERMS OF AGREEMENT
On February 25, 1999, I received a copy of a Joint Motion for Dismissal
and a Memorandum of Understanding and Agreement (EEO) from the parties. The
Memorandum of Understanding and Agreement (ERA) was submitted on March 1, 1999. This
Agreement was dated October 20, 1998. This Order deals solely with the ERA Agreement.
There were several conditions that had to be met before the ERA
Agreement would be submitted to the DOL for approval. First, Ms. McAnena had to apply to
the TVA Retirement System (TVARS) to be placed on disability retirement. In order for Ms.
McAnena to be given the opportunity to apply for disability retirement, the Respondent
reinstated her employment retroactive to the date of her September 26, 1997 termination. As a
result of this reinstatement, the agreement provided that Ms. McAnena would not be entitled to
wages, compensation, or any other employment benefits. Second, Ms. McAnena's disability
retirement application had to be approved by TVARS. Upon being approved by TVARS, this
agreement and the agreement resolving Ms. McAnena's EEO claim would be submitted to the
DOL.
Once these conditions were met the agreement was submitted to me. The
agreement provides that upon approval by TVARS of Ms. McAnena's application for disability
retirement, Ms. McAnena must voluntarily resign her TVA employment. The agreement also
provides that Respondent will pay Ms. McAnena and her attorneys, Bernabei & Katz, specified
[Page 3]
sums of money. The payment to Ms. McAnena is designated as being for emotional distress,
mental anguish, pain and suffering, humiliation, and damage to her professional reputation.
Concerning the payment to Ms. McAnena, the agreement provides that Ms. McAnena is
responsible for and legally bound to make payment of any and all taxes should the Internal
Revenue Service or any other court or agency disagree with the characterization of the payment.
The payment to Bernabei & Katz is designated as being for attorneys' fees and costs.
The complainant further agrees to a "general release" of all
claims against TVA, the TVA Board of Directors, and TVA's officers, agents employees, and
contractors as of the date of the agreement. Also, the agreement provides that TVA releases Ms.
McAnena from any and all claims. Ms. McAnena's Title VII claims are not released by this
agreement, but they are released by the separate EEO Agreement. The parties agree to keep the
matter of the agreement confidential, with some limited exceptions. The Agreement states that
"nothing in this agreement shall be construed to prohibit Ms. McAnena from reporting any
suspected instance of illegal activity of any nature, any nuclear safety concern, any workplace
safety concern, or any public concern to the United States Nuclear Regulatory Commission, the
DOL, or any other Federal or State governmental agency." Additionally, the Agreement
provides that Ms. McAnena is not prohibited from participating in any administrative, judicial, or
legislative proceeding or investigation that has not been resolved by the agreement.
REVIEW OF AGREEMENT
The agreement must be reviewed to determine whether the terms are a fair,
adequate, and reasonable settlement of the complainant's allegations. See, e.g., Poulos v.
Ambassador Fuel Oil Co., Inc., Case No. 86-CAA-1, Sec. Order, November 2, 1987, slip
opin. at 2 and Bunn v. MMR/Foley, 89-ERA-5 (Sec'y Aug. 2, 1989). Moreover, review
and approval of the settlement is limited to matters arising under the employee protection
provisions under the jurisdiction of the Department of Labor, in this case the Energy
Reorganization Act. Mills v. Arizona Public Service Co., 92-ERA-13 (Sec'y Jan. 23,
1992); Anderson v. Kaiser Engineers Hanford Co., 94-ERA-14 (Sec'y Oct. 21, 1994);
and, Poulos, supra.
I find the terms of the "confidentiality" provision do not
violate public policy in that they do not prohibit the Complainant from communicating with
appropriate government agencies. See, e.g., Bragg v. Houston Lighting & Power Co.,
94-ERA-38 (Sec'y June 19, 1995); Brown v. Holmes & Narver, 90-ERA-26 (Sec'y May
11, 1994); The Connecticut Light & Power Co. v. Secretary of United States Dep't of
Labor, No. 95-4094, 1996 U.S. App. LEXIS 12583 (2d Cir. May 31, 1996); and,
Anderson v. Waste Management of New Mexico, Case No. 88-TSC-2, Sec. Final Order
Approving Settlement, December 18, 1990, slip opin. at 2, where the Secretary honored the
parties' confidentiality agreement except where disclosure may be required by law.
[Page 4]
The "release" provision, paragraph 2, is also acceptable
because it only limits the right to sue in the future on claims or causes of action that the parties
may have as of the date of the agreement. Armijo v. Wackenhut Services, Inc., 94-ERA-7 (Sec'y Aug. 22, 1994); Saporito v. Arizona Public Service Co., 92-ERA-30, 93-ERA-26 and 93-ERA-43 (Sec'y Mar. 21, 1994); and, McCoy v. Utah Power, 94-CAA-1 and 6
(Sec'y Aug. 1, 1994).
The fact that the agreement does not contain the provisions found in 29
C.F.R. § 18.9(b) does not invalidate it as those provisions apply to consent findings not
settlements. Simmons v. Arizona Public Service Co., 90-ERA-6 (Sec'y Sept. 7, 1994).
The parties asked that the agreement be treated as "confidential
commercial information" pursuant to the DOL's Freedom of Information Act
("FOIA") regulation at 29 C.F.R. § 70.26. In Seater v. Southern
California Edison Co., 95-ERA-13 (ALJ March 11, 1997), Judge Kaplan invited the
Administrative Review Board to address the apparent conflict between the Department of
Labor's FOIA responsibilities and the precedents discussing the importance of public disclosure
of the true dollar amounts of whistleblower settlements. See, i.e., Biddy v. Alyeska Pipeline
Service Co., 95-TSC-7 (ARB Dec. 3, 1996). Judge Kaplan pointed out that the regulations
and the Secretary's policy appear to allow parties to so limit public access. See, Klock v.
Tennessee Valley Authority, 95-ERA-20 (ARB, May 1, 1996); Ezell v. Tennessee Valley
Authority, 95-ERA-33 slip opinion at 2 n. 3 (ARB, Sept. 19, 1996).1 Thus, the agreement itself is not appended
and is forwarded separately and marked "PREDISCLOSURE NOTIFICATION
MATERIALS."
1 In Seater v. Southern California Edison
Co., 95-ERA-13 (ARB Mar. 27, 1997), however, the ARB declined the ALJ's suggestion sub silentio. Rather, the
ARB employed the following standard boilerplate language in approving the settlement:
The records in this case are agency records which must be made available for public inspection and copying
under the FOIA. In the event a request for inspection and copying of the record of this case is made by a
member of the public, that request must be responded to as provided in the FOIA. If an exemption is
applicable to the record in this case or any specific document in it, the Department of Labor would determine
at the time a request is made whether to exercise its discretion to claim the exemption and withhold the
document. If no exemption were applicable, the document would have to be disclosed. Since no FOIA
request has been made, it would be premature to determine whether any of the exemptions in the FOIA
would be applicable and whether the Department of Labor would exercise its authority to claim such an
exemption and withhold the requested information. It would also be inappropriate to decide such questions
in this proceeding.