DOL Home > OALJ > Whistleblower > Hammer v. Brush Wellman, Inc., 93-SDW-2 (ALJ Sept. 7, 1993) |
DATE: September 7, 1993
CASE NO: 93-SDW-2
In the Matter of
JEFFREY P. HAMMER
Complainant
v.
BRUSH WELLMAN, INC.
Respondent
This proceeding involves the employee protection provisions of the Safe Drinking Water Act, 42 U.S.C. 300j-9(i), the Solid Waste Disposal Act, 42 U.S.C. 6971, and the Toxic Substances Control Act, 15 U.S.C. 2622, and procedural regulations published by the Secretary of Labor at 29 C.F.R. Part 24. A formal hearing was scheduled to commence in Toledo, Ohio, on June 23, 1993. On June 21, 1993, I was informed by telephone that the parties had resolved the dispute and would enter a settlement agreement. Accordingly, the hearing was cancelled.
In a brief letter dated June 28, 1993, the Complainant's counsel requested that Mr. Hammer's complaint be dismissed and stated: "The terms of the settlement agreement are confidential." Since the Secretary of Labor has held that a complaint cannot be dismissed on the basis of a settlement unless the Secretary finds that the settlement is fair, adequate and reasonable, and the Administrative Law Judge must review the settlement and recommend that it be approved or rejected, on July 22, 1993, I issued an "Order to Submit Settlement Agreement" to the parties. E.g. Polizzi v. Gibbs and Hill. Inc., Case No. 87-ERA-38, Sec. Order, July 18, 1989; see generally, Macktal v. Secretary of Labor, 923 F.2d 1150 (5th Cir. 1991), and Thompson v. U.S. Department of Labor, 885 F.2d 551 (9th Cir. 1989) (The Secretary of Labor must review and approve settlement agreements in Energy Reorganization Act whistleblower cases.)
The employer's counsel responded to my Order
by letter dated July 28, 1993, purportedly enclosing the executed agreement. Through inadvertent oversight, the agreement was not submitted at that time. The agreement was submitted by FAX transmission on August 9, 1993. The Complainant's counsel submitted a "Statement in Support of Settlement, which was also received on August 9, 1993. The "Settlement Agreement and Release" was signed by the Complainant, and by his counsel as witness, on July 1, 1993.
I have reviewed the terms of the "Settlement Agreement and Release." With the exception of paragraph 7, I find it to be fair, adequate and reasonable. Paragraph 7 is a very broad "release of claims" provision which encompasses matters far beyond the scope of my authority in this proceeding. For purposes of this Recommended Order, I construe paragraph 7 as a release, by the Complainant only, of his causes of action against the Respondent under the three statutes referenced in the first paragraph of this Recommended Order.
Accordingly, with the proviso that the "Settlement Agreement and Release" is fair, adequate and reasonable consideration for the Complainant's release of his causes of action under the Safe Drinking Water Act, Solid Waste Disposal Act, and Toxic Substances Control Act, I recommend that the Secretary of Labor enter an order approving the parties' agreement and dismissing the complaint with prejudice.
J. MICHAEL O'NEILL
Administrative Law Judge
CASE NO. 93-SDW-2
IN THE MATTER OF:
JEFFREY P. HAMMER,
v.
BRUSH WELLMAN, INC
Complainant,
Respondent.
On or about July 22, 1993 this Court ordered the parties to submit the settlement agreement for review. Counsel for the Respondent indicated that she would be forwarding a copy of same to the Court immediately. We assume this has been received.
The purpose of this brief memorandum is to indicate to the Court the considerations prompting the Complainant to enter into this settlement agreement.
The paramount fact that is not available to the Court on the record is that Complainant has obtained new employment where he is doing similar work to that done at Brush Wellman, at a higher wage and with Union protection. One of the major reasons for this action was to obtain reinstatement to his former employment with Brush Wellman. Since he now has employment, he has no need for an order of reinstatement.
Furthermore, since the Complainant was a probationary employee at the time of the hearing, he believed that it would be in his best interest to remain at work at his new job and not appear for a hearing. His priorities at that time were to retain his new job.
Accordingly, he opted for a settlement whereby his attorney fees and out-of-pocket expenses would be reimbursed and he would not have to interrupt his new job to prepare for and appear at a trial.
If the Administrative Law Judge needs further elucidation regarding this motivation for entering into this settlement agreement, we would be happy to comply.
Respectfully submitted,
BRITZ AND ZEMMELMAN
Attorneys for Complainant
BY:
Harland M. Britz (0009367)
This is to certify that a copy of the foregoing has been mailed this 5th day of August, 1993 to Nancy Shaw, Attorney for Respondent, 2000 Huntington Building, Cleveland, Ohio, 44115.
Harland M. Britz
Attorney for Complainant