U.S. Department of Labor
Office of Administrative Law Judges
1111 20th Street N.W.
Washington, D.C. 20036
DATE: Jan. 9, 1990
IN THE MATTER OF
William David Simmons,
Complainant,
v.
Arizona Public Service Co.,
Respondent
CASE NO.: 90-ERA-6
RECOMMENDED DECISION AND ORDER
This proceeding arises under Section 210 of the Energy
Reorganization Act, 42 U.S.C. §5851, and the regulations issued
pursuant thereto 29 C.F.R. Part 24.
The parties to the above captioned matter submitted a Joint
Motion with an attached Settlement requesting approval of their
proposed agreement on January 8, 1990, attached hereto and
incorporated herein. The submitted settlement failed to meet the
regulatory requirements for settlements under the Energy
Reorganization Act. 29 C.F.R. §18.9(b). The parties were
informed of this oversight and executed a joint stipulation,
which meets the regulatory requirements and by its terms modifies
the original settlement accordingly. This joint stipulation was
filed on January 9, 1990 and is attached hereto and incorporated
herein.
[Page 2]
It is hereby RECOMMENDED that the Secretary of Labor accept
and approve the parties' settlement agreement, as modified by the
joint stipulation. After reviewing the agreement, I found the
settlement to be a fair, adequate and reasonable resolution of
this matter.
JOHN M. VITTONE
Deputy Chief Judge
JMV/DA/dm
UNITED STATES OF AMERICA
BEFORE THE U.S. DEPARTMENT OF LABOR
Case No. 90-ERA-6
WILLIAM DAVID SIMMONS,
Complainant,
v.
ARIZONA PUBLIC SERVICE CO.,
Respondent.
JOINT MOTION
The undersigned counsel for Complainant and counsel
for Respondent hereby jointly move the Administrative Law Judge
to enter the attached Recommended Decision and order approving
the parties' full and final Settlement Agreement and to forward
the attached Approval of Settlement as expeditiously as
possible to the Secretary of Labor for her approval.
RESPECTFULLY SUBMITTED this 8th day
of January , 19 .
KOHN, KOHN COLAPINTO, P.C.
By
Stephen M. Kohn
517 Florida Ave., N.W.
Washington, D.C. 20001
Attorney for Complainant
SNELL & WILMER
By
Rebecca Winterscheidt
3100 Valley Bank Center
Phoenix, Arizona 85073
Attorneys for Respondent
ORIGINAL for the foregoing
and all attachments mailed this
day of , 19 , to:
The Honorable Judge Vittone
Administrative Law Judge
U.S. Department of Labor
Suite 700 Vanguard Building
1111 20th Street, N.W.
Washington, D.C. 20036
U.S. DEPARTMENT OF LABOR
SECRETARY OF LABOR
WASHINGTON, D.C.
Case No. 90-ERA-6
WILLIAM DAVID SIMMONS,
Complainant,
v.
ARIZONA PUBLIC SERVICE CO.,
Respondent.
APPROVAL OF SETTLEMENT
In accordance with the recommendation of
Administrative Law Judge John M. Vittone, the Settlement
Agreement entered into by the parties in this case is approved
pursuant to Section 210 of the Energy Reorganization Act, 42
U.S.C. §5851, and the Safe Drinking Water Act, 42 U.S.C.
§300j-9.
Date this day of , 1990.
Secretary of Labor
UNITED STATES OF AMERICA
BEFORE THE U.S. DEPARTMENT OF LABOR
Case No. 90-ERA-6
WILLIAM DAVID SIMMONS,
Complainant,
v.
ARIZONA PUBLIC SERVICE CO.,
Respondent.
SETTLEMENT AGREEMENT
(SECTION 210 OF THE ENERGY REORGANIZATION ACT
AND THE SAFE DRINKING WATER ACT)
This Settlement Agreement constitutes a final and
comprehensive resolution of Mr. William David Simmons' complaints
against Respondent Arizona Public Service Company/Arizona Nuclear
Power Project (APS/ANPP) to the Department of Labor (DOL) of
October 13, 1989 and October 17, 1989 filed under Section 210 of
the Energy Reorganization Act (ERA) and under the Safe Drinking
Water Act (SDWA). Submitted simultaneously herewith is a joint
notice to the Administrative Law Judge (ALJ) requesting approval
of this full and final Settlement Agreement of the parties'
claims.
1. Mr. Simmons voluntarily withdraws his DOL complaints of
October 13, 1989 and October 17, 1989, and agrees not to file any
additional or supplemental claims under Section 210 of the ERA or
under the SDWA against APS/ANPP regarding any event or incident
which occurred on or before the date of executive of this
Settlement Agreement.
2. Mr. Simmons agrees that upon being reinstated to his
prior position that he held on October 3, 1989, he will make up
all deficient training courses.
3. This settlement shall not be construed as an admission of
any wrongdoing by any of the parties, nor shall it be construed
as an adjudication on the merits for or against either party.
This Agreement settles all claims that Mr. Simmons had, or may
have had, under Section 210 of the ERA, 42 U.S.C. 5851, or under
the Safe Drinking Water Act, 42 U.S.C. 300 et seq., against
Respondent from May 15, 1982 until and through the date this
Settlement is ratified by the parties, and Complainant agrees not
to file Section 210 charges or Safe Drinking Water Act charges
based on any conduct by Respondent during this time period.
4. Nothing contained in this Settlement Agreement shall be
construed to preclude Mr. Simmons from reporting any safety
concerns to any Federal, State, or local governmental agency.
5. The parties acknowledge that on December 26, 1989,
Respondent placed Mr. Simmons in the position of WRF Operations
Engineer III at his request, at the same salary level he was at
in the Work Evaluator position.
6. In exchange for the promises of Mr. Simmons contained
herein, Respondent agrees to the following:
a) That Respondent will transfer Mr. Simmons to the same
position he held prior to his termination from Palo Verde in
October, 1989. Mr. Simmons will be required to take up all
deficient training and Respondent will give Simmons time to study
for and take all necessary training tests. He will make up those
exams on a one-on-one basis unless there is a regularly scheduled
class in which he can participate.
b) Pay Mr. Simmons backpay from, October 3, 1989 to December
22, 1989 in the amount of $8,280.08;
c) Provide confirmation to American Express that Simmons has
been reinstated to his former rate of pay;
d) Provide confirmation to the Bankruptcy Court that Simmons
has been reinstated to his former rate of pay;
e) Pay Simmons the difference in value of his Pinnacle West
stock at the date he sold the stock and the market value of the
stock on the date the settlement is approved by the ALJ;
f) Bridge Simmons' pension rights for the period he was
underemployed;
g) Bridge Simmons' seniority so that he suffered no loss in
seniority due to the termination;
h) Ensure that Simmons losses no sick leave, vacation leave,
or other accrued medical benefits as a result of his termination
on October 3, 1989;
i) Permantely remove from Simmons' personnel file all
documents concerning the October 3, 1989 incident with the
exception of Simmons' October 3, 1989 statement which will remain
in the personnel file for six (6) months from the date of the
incident, October 3, 1989.
7. Respondent also agrees to reimburse Simmons for the
following items up to the amounts indicated, subject to proper
documentation;
a) Three depositions ($834.05);
b) Copying costs ($254.64)
c) Mailing costs ($262.50);
d) Long distance ($156.40);
e) Rental car ($39.69);
f) Hotel for California ($130.00);
g) Air fare (,000);
h) Witness fees ($90.00);
i) Hotel for Phoenix ($270.00);
j) Firm-incurred costs of mailing, etc. ($700.00);
k) Airline tickets ($774); and
l) Attorneys' fees ($9,000)
Said expenses and costs will be paid within ten (10) working days
of the date that Simmons' counsel indicates all receipts have
been produced to Respondent's counsel, or within two working days
after Respondent has received formal written notice that the
Administrative Law Judge has approved the Settlement Agreement,
whichever is later. Said payment is subject to the other
approvals and executions set forth in paragraph 10. Payments of
monies outlined in paragraph 7, e,f,g,i,j, and l shall be paid
directly to counsel by check made payable to Kohn, Kohn &
Colapinto, P.C.. Reimbursements under 6b,6e,7a,b,c,d,h, and k
shall be directly paid to Mr. William David Simmons.
8. Respondent will not retaliate or discriminate against
Simmons because he filed a Section 9110 or Safe Drinking Water Act
charge against Respondent.
9. The parties agree to keep the terms of this Settlement
Agreement confidential except that said terms can be revealed if
required by federal or state law. The parties may reveal that
the dispute has been settled and that the settlement resulted in
Mr. Simmons being reinstated to the same position he held prior
to his termination on October 3, 1969.
10. APS/ANPP's obligations to perform the covenants
contained herein are contingent upon the Administrative Law Judge
approving the parties' Settlement Agreement, the Department of
Labor approving the OFCCP Agreement signed by Simmons within five
working days of the date Mr. Simmons signs and delivers the
agreement to APS counsel, and the execution of the Full Waiver
and Release document. If the Department of Labor does not approve
the OFCCP agreement within five working days, this tern, becomes
void. The parties agree to jointly request that the Department
of Labor expedite the approval of the OFCCP agreement.
11. If the Secretary of Labor does not approve this
Settlement Agreement as written, and the parties are unable to
resolve the differences, and either party chooses to litigate the
merits of this case under either Section 210 or the Safe Drinking
Water Act, Mr. Simmons will have ten (10) days in which to
reimburse APS/ANPP for all disbursements in the above-mentioned
paragraphs.
DATED THIS DAY OF JANUARY, 1990.
APPROVED AS TO FORM:
COMPLAINANT:
William David Simmons
Stephen M. Kohn
Attorney for Complainant
RESPONDENT:
ARIZONA PUBLIC SERVICE COMPANY
ARIZONA NUCLEAR POWER PROJECT
Rebecca Winterscheidt
Attorney for Respondent
BY:
ITS:
UNITED STATES OF AMERICA
BEFORE THE U.S. DEPARTMENT OF LABOR
Case No. 90-ERA-6
WILLIAM DAVID SIMMONS,
Complainant,
v.
ARIZONA PUBLIC SERVICE CO.,
Respondent
JOINT STIPULATION
William David SImmons and Arizona Public Services
Company/Arizona Nuclear Power Project, by and through their
undersigned counsel hereby jointly stipulate that pursuant to
29 CFR §18.9 (b), the settlement agreement in the
above-captioned case which was signed by all parties on January
5, 1990, be amended to include the following:
1. The Administrative Law Judge's order shall
have the same force and effect as an order made
after full hearing;
2. That the entire record on which any order may be
based shall consist solely of the complaint,
order of reference or notice of administrative
determination, as appropriate, and the agreement;
3. That the parties agree to a waiver of any further
procedural steps before the Administrative Law
Judge and
4. That the parties agree to a waiver of any right
to challenge or contest the validity of the order
entered into in accordance with the agreement.
RESPECTFULLY SUBMITTED this day of January, 1990.
SNELL & WILMER
By
Rebecca Winterscheiet
3100
Valley Bank Center
Phoenix, Arizona 85073
Attorney for Respondent
Arizona Service Company/
Arizona Nuclear Power
Project
  KOHN, KOHN &
COLAPINTO, P.C.
By
Stephen M. Kohn
517
Florida Ave., N.W.
Washington, D.C. 20001
Attorneys for Complainant
William David Simmons