DOL Home > OALJ > Whistleblower > Gaballa v. Carolina Power & Light Co., 1996-ERA-43 (ALJ Mar. 23, 1999) |
DATE: March 23, 1999
CASE NOS.: 96-ERA-00043
98-ERA-00024
In the Matter of
MAGED F. GABALLA
Complainant
v.
CAROLINA POWER AND LIGHT COMPANY
Respondent
In this matter, which arises under the Energy Reorganization Act, 42 U.S.C. §5851 (the Act), and its implementing regulations which are found at 29 C.F.R. Part 24, the parties have filed a joint motion for approval of settlement. Attached to the parties' joint motion is a Settlement Agreement and General Release which was executed by the Complainant on March 3, 1999 and by the Respondent on March 12, 1999. The parties have certified that the agreement constitutes the sole settlement agreement with respect to the Complainant's claims in this matter.
Pursuant to the requirements of the Act and Regulations, I have reviewed the parties' settlement agreement and determined that it constitutes a fair, adequate and reasonable settlement of the complaints. 29 C.F.R. §24.6; Macktal v. Secretary of Labor, 923 F.2d 1150, 1153-54 (5th Cir. 1991); Thompson v. U.S. Department of Labor, 885 F.2d 551, 556 (9th Cir. 1989); Fuchko et al. v. Georgia Power Co., Case
Nos. 89-ERA-9, 89-ERA-10 (Sec'y. March 23, 1989), slip op. at 1-2. Although the settlement agreement resolves all issues in controversy between the parties, including matters arising under laws other than the Act, my review of the agreement has been limited to determining whether its terms provide a fair, adequate and reasonable settlement of the Complainant's allegations that the Respondents violated the Act. Webb v. Numanco, LLC, Case No. 98-ERA-27 (ARB January 29, 1999), slip op. at 2; Poulos v. Ambassador Fuel Oil Co., Inc., Case No. 86- CAA-1 (Sec'y. November 2, 1987), slip op. at 2.
In their joint motion, the parties request that the Settlement Agreement and
General Release, including an attached exhibit,1 be treated as exempt from disclosure under the Freedom of Information Act, 5
U.S.C. §552 (FOIA). In addition, the parties have agreed that the terms of the Settlement
Agreement and General Release "are confidential and will not be disclosed to third parties,
except as required by law." Settlement Agreement at para. 10. With regard to
requests to exempt the terms of a settlement under that Act from the disclosure provisions of
FOIA, the Administrative Review Board has held as follows:
Webb v. Numanco, LLC, Case No. 98-ERA-27 (ARB January 29, 1999), slip op. at 3.
See also Darr v. Precise Hard Chrome, Case No. 95-CAA-6 (Sec'y May 9,
1995), slip op. at 2-3; DeBose v. Carolina Power and Light Co., Case No. 92-ERA-14
(Sec'y February 7, 1994), slip op. at 3. Therefore, I will construe the parties' joint motion as a
request that the Settlement Agreement and General Release, including the attached Exhibit
"A", be treated as confidential commercial pursuant to the provisions of 29 C.F.R.
Part 70.2 See generally
Bonanno v. Stone & Webster Engineering Corp., Case No. 97-ERA-33 (ARB June 27,
1997), slip op. at 2.
Accordingly, it is hereby RECOMMENDED that the Settlement
Agreement and General Release between the Complainant Maged F. Gaballa and the Respondent
Carolina Light & Power Company be APPROVED and that the complaints filed in
this matter be DISMISSED WITH PREJUDICE. It is FURTHER
RECOMMENDED that the Settlement Agreement and General Release, including the
attached Exhibit "A", be designated as confidential commercial information pursuant
to 29 C.F.R. §70.26(b).
Daniel F. Sutton
Camden, New Jersey
1 Attached to the Settlement
Agreement and General Release as Exhibit "A" is a copy of an Agreement of Final
Settlement and Release which the parties entered into in a related proceeding before the North
Carolina Industrial Commission.
2 Pursuant to 29 C.F.R.
§70.26(b), business submitters of information to the Department of Labor may designate
specific information as confidential commercial information to be handled as provided in the
Regulations. When FOIA requests are received for such information, the Department of Labor is
required to notify the submitter promptly, 29 C.F.R. §70.26(e), and the submitter must be
given a reasonable period of time to state its objections to disclosure. 29 C.F.R. §70.26(e).
The submitter must be notified if a decision is made to disclose the information, 29 C.F.R.
§70.26(f), or, in a case where the submitted information is withheld, if a suit is filed by the
requesting party to compel disclosure. 29 C.F.R. §70.26(h).
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Administrative Law Judge