Benedetti v. Town of Newington, 2000-ERA-39 (ALJ May 14, 2003)

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Benedetti v. Town of Newington, 2000-ERA-39 (ALJ May 14, 2003)

U.S. Department of Labor Office of Administrative Law Judges
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Issue Date: 14 May 2003

CASE NO.: 2000-ERA-00039

In the Matter of

GEORGE BENEDETTI
Complainant

TOWN OF NEWINGTON
Respondent

RECOMMENDED DECISION AND ORDER APPROVING SETTLEMENT
AND DISMISSING COMPLAINT WITH PREJUDICE

This matter arises under the employee protection provisions of the employee protection provisions of the Clean Air Act ("CAA"), 42 U.S.C. § 7622, and the Toxic Substances Control Act ("TSCA"), 15 U.S.C. § 2622, and the implementing regulations which are found at 29 C.F.R. Part 24.¹ On May 13, 2003, the parties submitted for approval an agreement which amicably resolves all disputes between them.

The CAA and TSCA requires that the Secretary of Labor must enter into or otherwise approve the settlement of a whistleblower complaint. 42 U.S.C. §7622(b)(2)(A), 15 U.S.C. § 2622(b)(2). See also Beliveau v. U.S. Department of Labor, 170 F.3d 83, 88 (1st Cir. 1999). The Secretary's participation is effected by the adjudicator's order finding that the settlement is fair, adequate and reasonable. See 29 C.F.R. § 24.6; Macktal v. Secretary of Labor, 923 F.2d 1150, 1153-54 (5th Cir. 1991); Thompson v. U.S. Dep't of Labor, 885 F.2d 551, 556 (9th Cir. 1989).

Review of the agreement reveals that it encompasses the settlement of matters under laws other than the CAA and TSCA. Regarding such provisions, the Secretary has stated,

[The Secretary's] authority over settlement agreements is limited to such statutes as are within [the Secretary's] jurisdiction and is defined by the applicable statute. See Aurich v. Consolidated Edison Company of New York, Inc., Case No. [86-]CAA-2, Secretary's Order Approving Settlement, issued July 29, 1987; Chase v. Buncombe County, N.C., Case No. 85-SWD-4, Secretary's Order on Remand, issued November 3, 1986.

Poulos v. Ambassador Fuel Oil Co., Inc., USDOL/OALJ Reporter (HTML), OALJ No. 1986-CAA-1 at 1 (November 2, 1987) (citations and italics in original). I have, therefore, limited my review of the agreement to determining whether the terms thereof are a fair, adequate and reasonable settlement of the Complainant's allegations that the Respondent violated the CAA and TSCA.

[Page 2]

Upon review, I find that the parties' agreement constitutes a fair, adequate and reasonable settlement of the complaint. Accordingly, I recommend the agreement be APPROVED and that the complaint be DISMISSED WITH PREJUDICE.

SO ORDERED.

Daniel F. Sutton
Administrative Law Judge

Boston, Massachusetts
DFS:dmd

NOTICE: This Recommended Decision and Order will automatically become the final order of the Secretary unless, pursuant to 29 C.F.R. § 24.8, a petition for review is timely filed with the Administrative Review Board, United States Department of Labor, Room S-4309, Frances Perkins Building, 200 Constitution Avenue, NW, Washington, DC 20210. Such a petition for review must be received by the Administrative Review Board within ten business days of the date of this Recommended Decision and Order, and shall be served on all parties and on the Chief Administrative Law Judge. 29 C.F.R. § 24.8 (2000).

[ENDNOTES]

¹ The matter was erroneously docketed with an "ERA" case number which is used for complaints alleging violations of the Energy Reorganization Act, 42 U.S.C. §5851. The original docketing number was maintained to avoid confusion to the parties.