U.S. Department of Labor Administrative Review Board
200 Constitution Avenue, N.W.
Washington, D.C. 20210
ARB CASE NO. 97-050
ALJ CASE NO. 97-ERA-6
DATE: March 31, 1998
In the Matter of:
LAXMI N. KHANDELWAL,
COMPLAINANT,
v.
SOUTHERN CALIFORNIA EDISON,
RESPONDENT.
BEFORE: THE ADMINISTRATIVE REVIEW BOARD
DECISION AND ORDER OF REMAND
This case presents a question regarding the effect of a severance agreement
executed by the parties prior to the time the complainant filed this complaint under the employee
protection provision of the Energy Reorganization Act of 1974, as amended (ERA), 42 U.S.C.
§5851 (1994). Complainant Laxmi N. Khandelwal was employed as an engineer at
Respondent Southern California Edison (SCE) for 23 years, until July 1995, when he executed a
severance agreement and accepted early retirement. On September 21, 1995, Khandelwal, who
is proceeding pro se, filed this complaint alleging that the employment severance and
several earlier personnel actions were retaliatory and unlawful under the ERA.
[Page 2]
The Wage and Hour Division of the Department of Labor notified SCE of
the complaint and indicated that it first would attempt to assist the parties in reaching a mutually
agreeable settlement of the charges. SCE responded that the matter already had been settled by
virtue of the severance agreement in which Khandelwal released SCE from all claims related to
his employment, including the employment severance and any action leading to the severance.
SCE requested dismissal. SCE further requested that the Administrator issue a formal policy
determination concerning the issue.
The Administrator ruled that she would apply the same standards to
settlements executed prior to the filing of complaints that the Secretary has applied to settlements
reached during or after preliminary investigations. The Administrator elaborated that if the Wage
and Hour Division finds, after investigation, that: (1) the terms of the settlement are fair,
adequate, and reasonable, (2) the provisions of the agreement are not contrary to public policy,
and (3) the complainant's consent was knowing and voluntary, the Division will terminate the
investigation and dismiss the complaint. Subsequently, the Wage and Hour Division issued
preliminary findings in this case that Khandelwal's termination was not discriminatory and that
he voluntarily elected to accept the severance package and early retirement.
Khandelwal appealed, and shortly after the case was assigned to the
Administrative Law Judge (ALJ), SCE filed a Motion for Summary Decision. After considering
Khandelwal's response to the motion, the ALJ issued a Recommended Order Granting Summary
Decision and Dismissal of Complaint (R. O.) on January 17, 1997.
The ALJ found that the Severance Agreement and Release constitutes a
binding settlement, even though it was executed before Khandelwal filed this complaint and even
though it does not specifically release any claims filed under the ERA. The ALJ further found that
the terms of the agreement do not violate public policy and that Khandelwal executed the severance
agreement knowingly and without coercion. R. O. at 6-8. Finally, the ALJ added that by
retaining the monetary consideration for the agreement, Khandelwal ratified the agreement and
negated any claim of duress. R. O. at 9.
1 Authority to
investigate alleged ERA violations has been transferred from the
Wage and Hour Division of the Department of Labor to OSHA.
See 61 Fed. Reg. 19,978 (May 3, 1996).
2See
Cosmair, 821 F.2d at 1091, and authority cited therein,
regarding the validity of a waiver of the right to recover damages.
3 Thus, we
disagree with the ALJ's comments, R. O. at 6, that the clause in
Paragraph 7 permitting direct communication with the NRC is
sufficient to preserve the public interest. In addition, the fact
that Khandelwal subsequently contacted both the NRC and the
Department of Labor, does not cure this express contractual
prohibition, which could adversely affect or have chilling effects
on future complainants.
4 In remanding
to the ALJ, we reach no conclusions, nor should any be inferred, as
to the merits of this case.