DATE: September 29, 1989
CASE NO. 85-ERA-33
IN THE MATTER OF
LLOYD MARTIN McQUAY,
COMPLAINANT,
v.
THE WALDINGER CORPORATION,
RESPONDENT.
BEFORE: THE SECRETARY OF LABOR
ORDER TO SUBMIT SETTLEMENT
On March 11, 1986, the administrative law judge (ALJ) in
this case arising under the employee protection provision of the
Energy Reorganization Act of 1974, as amended (ERA), 42 U.S.C.
§ 5851 (1982), submitted a Recommended Decision and Order (R.D.
and O.) which found that Respondent discriminated against
Complainant when it laid him off in May, 1985. The ALJ
recommended that Respondent be ordered to reinstate Complainant
and pay him back pay. On April 22, 1986, the ALJ issued a
Recommended Fee Award recommending that Respondent be ordered to
pay Complainant over $15,000 in attorney's fees and costs. on
January 9, 1987, the parties submitted a Withdrawal of Complaint
[Page 2]
and Stipulation of Dismissal with Prejudice (Stipulation), signed
by counsel for each party and approved by the Complainant. The
Stipulation states that pursuant to Fed. R. Civ. P. 41(a) (1) (ii)
the parties stipulate that the Complaint in this case is
withdrawn and the action is dismissed with prejudice.
The Stipulation does not refer to a settlement in this case,
and there is no copy of a settlement in the record. However, in
these circumstances, where a case has proceeded to a hearing and
a decision has been rendered by the ALJ, the facts indicate that
the matter has been settled, rather than simply withdrawn. The
Secretary has held a number of tires that a case under the ERA
cannot be dismissed on the basis of a settlement unless the
settlement has been reviewed and the Secretary has found that it
is fair, adequate and reasonable. See Fuchko and Yunker v.
Georgia Power Co., Case Nos. 89-ERA-9 and 89-ERA-10, Sec. Order,
March 23, 1989, and cases cited therein, slip op. at 2 (copy
appended).
Accordingly, if the withdrawal of January 9, 1987, was the
result of a settlement, the parties are ordered to submit a copy
of the settlement agreement to me for review within thirty days
of receipt of this order. If all the parties, including the
Complainant, have not signed the settlement agreement itself, the
parties shall submit a certification or stipulation, signed by
all the parties to the agreement, including the Complainant
individually, demonstrating their informed consent to the
agreement. If the withdrawal of January 9, 1987, was not the
result of a settlement of these claims, the parties may submit
a declaration to that effect pursuant to 28 U.S.C. § 1746.
