DOL Home > OALJ > Whistleblower > Merritt v. Mishawaka Municipal Utilities, 93-SDW-3 (Sec'y Sept. 11, 1995) |
DATE: September 11, 1995 CASE NO. 93-SWD-3 IN THE MATTER 0F NORMAN D. MERRITT, COMPLAINANT, v. ISHAWAKA MUNICIPAL UTILITIES, THE CITY OF MISHAWAKA, RESPONDENT. BEFORE: THE SECRETARY OF LABOR FINAL DECISION AND ORDER Before me for review is the Recommended Order of Dismissal issued on March 24, 1995, by the Administrative Law Judge (ALJ) in this case arising under the employee protection provisions of the Safe Drinking Water Act, 42 U.S.C. § 300(j)- 9(i)(1988)(SDWA). The ALJ recommended that the complaint against Respondent be dismissed with prejudice. I agree. On January 4, 1993, Complainant Merritt filed a complaint with the U.S. Department of Labor regarding his allegedly unlawful termination by the Respondent for engaging in whistleblower activities. On January 29, 1993, Merritt, in consideration of $10,000, signed an agreement releasing the Respondents "of and from any and all claims, be the same known or unknown, of whatever kind or nature, which the Releasor [Merritt] may now have or hereafter acquire by reason of any events occurring prior to the date of this agreement. . . ." The agreement specifically released a case then pending in the U.S. District Court in the Northern District of Indiana that erritt initiated against the Respondents, and specifically
[PAGE 2] excepted a potential workman's compensation claim he was apparently contemplating filing against the Respondents. Although the agreement does not mention Merritt's pending whistleblower claim against the Respondents, the language of the release is so broadly constituted that, given the temporal proximity of his whistleblower complaint and his obvious knowledge that he could reserve a cause of action, it is reasonable to infer that Merritt understood that the release included the whistleblower action. In point of fact, Merritt's submissions before me are silent with regard to any allegation that the ALJ misconstrued the breadth of the release by including the whistleblower action. erritt's singular complaint before me is that Respondents wrongfully modified the agreed upon response to be used in answering inquiries from potential employers regarding him. erritt alleges that Respondents modified the response by personalizing the letter to the requesting party and by having the letter signed by Respondents' General Manager instead of the Director of Human Resources. Merritt does not allege that the Respondents materially changed the body of the letter, therefore I conclude that Merritt's objections are without substance. Review of the agreement reveals that it may encompass the settlement of matters under laws other than the SDWA. See Agreement at 1-2. As stated in Poulos v. Ambassador Fuel Oil Co., Inc., Case No. 86-CAA-1, Sec. Order, Nov. 2, 1987, slip op. at 2: [The Secretary's] authority over settlement agreements is limited to such statutes as are within [the Secretary's] jurisdiction and is defined by the applicable statute. See Aurich v. Consolidated Edison Company of New York, Inc., Case No. [86-]CAA-2, Sec. Order Approving Settlement, issued July 29, 1987; Chase v. Buncombe County, N.C., Case No. 85-SWD-4, Sec. Order on Remand, issued Nov. 3, 1986. I have therefore, limited my review of the agreement to determining whether the terms thereof are a fair, adequate and reasonable settlement of Complainant's allegations that Respondents violated the SDWA. I further determine that even if one could remotely consider the reasonable changes of the response letter to be outside the scope of the settlement agreement, which I do not, the alleged breach is not sufficient to in any way affect my determination of the fairness, adequacy and reasonableness of the agreement. I therefore concur with the ALJ's finding that the agreement signed by the parties is fair, adequate and reasonable as a basis for dismissing the complaint with prejudice. See Macktal v. Secretary of Labor, 923 F.2d 1150, 1153-54 (5th Cir. 1991); Thompson v. U.S. Dep't of Labor, 885 F.2d 551, 556 (9th Cir.
[PAGE 3] 1989); 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. I further concur with the ALJ's determination that the January 29, 1993, agreement was intended to settle the whistleblower action. Macktal, 923 F.2d at 1156-58. Accordingly, the complaint is DISMISSED WITH PREJUDICE. SO ORDERED. ROBERT B. REICH Secretary of Labor Washington, D.C.