DOL Home > OALJ > Whistleblower > Ezell v. Tennessee Valley Authority, 95-ERA-39 (ARB Aug. 21, 1996) |
ARB CASE NO.: 96-142
ALJ CASE NO. 95-ERA-39
DATE: AUG 21 1996
In the Matter of:
CAROLYN D. EZELL,
TENNESSEE VALLEY AUTHORITY,
BEFORE: THE ADMINISTRATIVE REVIEW BOARD1
This case arises under the employee protection provision of the Energy Reorganization Act
(ERA), 42 U.S.C. § 5851 (1988). The parties have requested dismissal of the complaint
with prejudice and submitted a Memorandum of Understanding and Agreement in support of
such
request.
Since the request for approval of the settlement is based on an agreement entered into by
the
parties, we must review it to determine whether the terms are a fair, adequate and reasonable
settlement of the complaint. 42 U.S.C. § 5851(b)(2)(A)(1988). Macktal v.
Secretary of Labor, 923 F.2d 1150, 1153-54 (5th Cir. 1991); Fuchko and Yunker v.
Georgia Power Co., Case Nos. 89-ERA-9, 89-ERA-10, Sec. Order, Mar. 23, 1989,
slip
op. at 1-2.
The agreement appears to encompass the settlement of matters arising under various laws,
only
one of which is the ERA. See Paragraph 4. For the reasons set forth in Poulos v.
Ambassador Fuel Oil Co., Inc., Case No. 86-CAA- 1, Sec. Order, Nov. 2, 1987, slip op. at 2,
we
have limited our review of the agreement to determining whether its terms are a fair, adequate
and
reasonable settlement of the Complainant's allegations that Respondent violated the ERA.
Paragraph 1 indicates that Complainant and her attorney were to receive a certain sum
which
they characterized as "payment for compensatory damages, attorneys' fees and litigation
expenses." On June 26, 1996, we issued an Order requiring the parties to advise us as to the
actual amount of that sum the Complainant was to receive. We were subsequently advised by
Complainant's counsel that Complainant was to receive the entire amount of the settlement since
she
had paid her attorney under a separate agreement. The amount of the settlement is slightly less
than
Complainant's total attorney's fees and costs, but we note that the Wage and Hour investigation
found
that the adverse actions taken against Complainant were not motivated by her protected activities
and
that she remains employed by Respondent at her regular employment. See page 1, third
and
fourth paragraphs.
Paragraph 7 provides that the Complainant is not prohibited from reporting any suspected
nuclear
safety concern to the proper governmental authority.
We find that the agreement, as here construed, is a fair, adequate and reasonable settlement
of the complaint. Accordingly, we APPROVE the agreement and DISMISS THE COMPLAINT
WITH PREJUDICE. See ¶ 4.
Secretary's Order 2-96 contains a comprehensive list of the statutes, executive order and regulations under which the Board now issues final agency decisions. A copy of the final procedural revisions to the regulations (61 Fed. Reg. 19982), implementing this reorganization is also attached.