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Issue Date: 25 March 2004
CASE NO.: 2004-AIR-00008
In the Matter of
SUSAN P. TRECHAK, Complainant.
v.
AMERICAN AIRLINES, Respondent.
ORDER DISMISSING COMPLAINT WITH PREJUDICE BASED ON PRIOR SETTLEMENT AND WAIVER OF CLAIMS
This case arose when the complainant, Susan P. Trechak ("Complainant"), filed by letter dated August 25, 2003, a complaint dated July 8, 2003 (the "July 8, 2003 Complaint") under the employee protection provisions of the Wendell H. Ford Aviation Investment and Reform Act for the 21st Century, 49 U.S.C.A. § 42121 ("AIR 21"). Complainant alleged that her employer, American Airlines, Inc. ("American" or "Respondent") violated the whistleblower protection provisions of AIR 21 through alleged conduct occurring no later than July 8, 2003.
An Occupational Safety and Health Administration ("OSHA") investigation determined that Complainant's July 8, 2003 Complaint failed to allege facts and evidence to meet all of the required elements of a prima facie case of discrimination under AIR 21. In addition, OSHA found that the July 8, 2003 Complaint was "virtually identical" to an earlier complaint filed by Complainant on July 17, 2002 (the "July 17, 2002 Complaint"). That complaint that was previously appealed and assigned to me as Office of Administrative Law Judges ("OALJ") Case No. 2003-AIR-5 (the "2003 Case"), and was dismissed by my August 8, 2003 decision and ruling as untimely filed.
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Later in August 2003, Complainant appealed my decision in the 2003 Case and the Administrative Review Board ("ARB") accepted jurisdiction of the appeal.
On September 11, 2003, Complainant and Respondent signed settlement agreements and releases which settled all of Complainant's disputes, claims, and causes of action that had been, were, or could have been asserted by her against Respondent, including the 2003 Case. Complainant later wrote to the ARB and attempted to void the September 11, 2003, Settlement Agreement and Release.
On December 30, 2003, Complainant's instant action, 2004-AIR-8 (the "2004 Case"), came to the OALJ on appeal. On January 13, 2004, the 2004 Case was assigned to the undersigned.
On January 28, 2004, I issued an order to show cause ("OSC") why the 2004 Case should not be dismissed for failure to make out a prima facie case since it appeared that both the 2003 Case and the 2004 Case shared many of the same allegations.
On February 3, 2004, Respondent corresponded to the ARB noting the history of the 2003 Case and asking for dismissal of that appeal based on the Settlement Agreement.
By March 12, 2004, I received briefing from both parties in response to the OSC. Respondent submitted a copy of the Settlement Agreement as Exhibit "J" to its response.
On March 23, 2004, I issued an Order Vacating Hearing Date and Holding Case in Abeyance Until Further Order (the "Abeyance Order") finding, among other things, that if the ARB approved the settlement agreement referred to above in the 2003 Case, this case would be dismissed as part of the approved settlement. As a result, I found that in the interests of judicial economy, this case would be held in abeyance until after the Administrative Review Board rendered its decision in the 2003 Case and as further ordered by the undersigned.
After the Abeyance Order was issued, I received a copy of the ARB's Final Order Approving Settlement Agreement and Dismissing Complaint in the 2003 Case(the "ARB Order"). The ARB Order: (1) denied Complainant's request that the September 11, 2003 Settlement Agreement be voided; (2) construed the waiver language in paragraphs three and four of the Agreement as "limited to the right to sue in the future on claims or causes of action arising out of facts or any set of facts occurring before the date of the [September 11, 2003] agreement"; (3) approved the Settlement Agreement; and (4) finally dismissed the July 17, 2002 Complaint and Complainant's related appeal of my August 8, 2003 decision with prejudice.
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I find that the full settlement and release language of paragraphs three and four in the approved September 11, 2003 Settlement Agreement and Release apply to the instant action, since this action is comprised of claims or causes of action arising out of facts or any set of facts occurring before the September 11, 2003 date of the approved Settlement Agreement and Release. As such, I further find that this 2004 Case can proceed no longer as Complainant, through the approved September 11, 2003 Settlement Agreement and Release, has waived all of her rights to proceed in the instant action.
For the foregoing reasons:
ITIS ORDERED that this action be, and the same hereby is, DISMISSED With Prejudice and without cost or attorneys fees to either party.
GERALD M. ETCHINGHAM
Administrative Law Judge
San Francisco, California
NOTICE OF APPEAL RIGHTS: This decision shall become the final order of the Secretary of Labor pursuant to 29 C.F.R. § 1979.110, unless a petition for review is timely filed with the Administrative Review Board ("Board"), US Department of Labor, Room S-4309, 200 Constitution Avenue, NW, Washington DC 20210, and within 30 days of the filing of the petition, the ARB issues an order notifying the parties that the case has been accepted for review. The petition for review must specifically identify the findings, conclusions or orders to which exception is taken. Any exception not specifically urged ordinarily shall be deemed to have been waived by the parties. To be effective, a petition must be filed within ten business days of the date of the decision of the administrative law judge. The date of the postmark, facsimile transmittal, or e-mail communication will be considered to be the date of filing; if the petition is filed in person, by hand-delivery or other means, the petition is considered filed upon receipt. The petition must be served on all parties and on the Chief Administrative Law Judge at the time it is filed with the Board. Copies of the petition for review and all briefs must be served on the Assistant Secretary, Occupational Safety and Health Administration, and on the Associate Solicitor, Division of Fair Labor Standards, U.S. Department of Labor, Washington, DC 20210. See 29 C.F.R. §§ 1979.109(c) and 1979.110(a) and (b), as found OSHA, Procedures for the Handling of Discrimination Complaints Under Section 519 of the Wendell H. Ford Aviation Investment and Reform Act for the 21st Century; Final Rule, 68 Fed. Reg. 14099 (Mar. 21, 2003).
