Office of Administrative Law Judges 50 Fremont Street, Suite 2100 San Francisco, CA 94105
(415) 744-6577 (415) 744-6569 (FAX)
Issue Date: 20 March 2003
CASE NO.: 2002-ERA-00039/40
In the Matter of:
JAMES MATTIMOE,
Complainant
vs.
NAVARRO RESEARCH AND ENGINEERING, INC.,
and
U.S. DEPARTMENT OF ENERGY,
Respondents.
RECOMMENDED DECISION AND ORDER APPROVING SETTLEMENT AND DISMISSING RESPONDENT DEPARTMENT OF ENERGY
INTRODUCTION
This action arises under the Energy Reorganization Act of 1974, 42 U.S.C. § 5851, as amended, ("ERA"). The proceedings began when the Complainant filed a complaint with the Occupational Safety & Health Administration ("OSHA") alleging that Navarro Research and Engineering, Inc. ("Navarro Engineering") and the U.S. Department of Energy, violated Section 211 of the ERA by retaliating against him for his alleged whistleblowing activity. The proceedings before the Office of Administrative Law Judges began after the Complainant and respondent Navarro Research filed separate requests for hearings.
For the reasons set forth below, it is recommended that the Department of Energy be dismissed as a respondent and that the settlement agreement submitted by the Complainant and Respondent Navarro Research and Engineering be approved.
DISMISSAL OF DEPARTMENT OF ENERGY
On February 20, 2002, the Complainant filed a complaint with the Occupational Health and Safety Administration ("OSHA") alleging that respondents Navarro Engineering and the Department of Energy had discriminated against him in reprisal for protected whistleblowing activity. On September 13, 2003, the OSHA Deputy Regional Administrator notified the Complainant that his complaint against the Department of Energy was being dismissed without investigation because the Department of Energy is not an "employer" under Section 211 of the ERA. On the same day, the OSHA Deputy Regional Administrator notified Navarro Research that the investigation had shown there was merit to the Complainant's allegation of reprisal for whistleblowing and ordered remedial relief.
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Both the Complainant and Navarro Research requested hearings before the OALJ after being notified of the OSHA determination. After this matter was assigned to me for hearing, I scheduled it for a hearing to be held on November 14, 2002, in Richland, Washington. On October 10, 2002, I conducted a telephonic status conference at the request of the parties to discuss the hearing schedule and location. The Complainant and Navarro Research asked that the hearing be continued to allow them time for discovery, and they asked that the hearing be moved to Las Vegas. Both requests were granted, and the hearing was rescheduled to January 27-31, 2003, in Las Vegas.
On October 16, 2003, I issued an Order to Show Cause ordering the Complainant to show cause why the Department of Energy should not be dismissed as a party. I ordered him to respond to my Order by October 25, 2002. On November 2, 2002, the Complainant responded to the Order to Show Cause, acknowledging that the Administrative Review Board has affirmed that the Department of Energy is not an employer under the whistleblower provisions of the ERA, and asked that the Department of Energy be dismissed as a respondent in this matter.
The Complainant's request to dismiss the Department of Energy is GRANTED, and it is recommended that the Department of Energy be DISMISSED as a respondent in this action.
APPROVAL OF SETTLEMENT AGREEMENT
On March 5, 2003, respondent Navarro Research submitted a settlement agreement signed by Navarro Research and the Complainant and a joint motion asking that the settlement agreement be approved and that this matter be dismissed with prejudice. The joint motion also indicated that the parties had designated the agreement as confidential commercial information within the meaning of the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552 and asked that the procedures in 29 C.F.R. § 70.26(b) be followed if there is a request for all or part of the settlement agreement.
I have carefully reviewed the terms of the settlement agreement submitted in this case. I find the settlement agreement to be a fair, adequate, and reasonable settlement of the complaint that led to this proceeding. Pursuant to the parties' agreement that the settlement agreement is confidential commercial information, the settlement agreement will be retained in the case file in an envelope identifying it as "Predisclosure Notification Materials."
Accordingly, it is hereby RECOMMENDED that the settlement agreement between the complainant, James Mattimoe, and the respondent, Navarro Research and Engineering, Inc., be APPROVED and that the matter be DISMISSED WITH PREJUDICE.
JENNIFER GEE
Administrative Law Judge
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. See 29 C.F.R. §§ 24.7(d) and 24.8.
