UNITED STATES
DEPARTMENT OF LABOR

DATE: July 14, 1997
OALJ CASE NO: 94-CAA-18
ARB CASE NO: 96-044

In the Matter of:

FRANCES MACLEOD,
    Complainant,

    v.

LOS ALAMOS NATIONAL LABORATORY,
    Respondent.

   This matter arises under the employee protection provision of the Energy Reorganization Act of 1974 (the "Act" or "ERA"), 42 U.S.C. § 5851, and the regulations codified at 29 C.F.R. Part 24.¹ Complainant, Frances MacLeod, has appealed the determination of Norma C. Adams, District Director, dated August 25, 1994, denying Complainant's complaint against Los Alamos National Laboratory, Respondent.

   A hearing in this matter was held before the undersigned administrative law judge on April 19 and 20, 1995, at Santa Fe, New Mexico. On November 22, 1995, I issued a "Recommended Decision and Order" ("RD&O"). Therein, I found that Complainant had established: (1) that she had engaged in "protected activity"; (2) that Respondent was aware of that activity; and (3) that Respondent took an adverse action against Complainant (See RD&O at 28-29). It was further found that Complainant had presented sufficient evidence to raise the inference that the adverse action was in retaliation for her protected activities (RD&O at 29-30).

   On November 22, 1995, the RD&O and the administrative file were transmitted to the office of Administrative Appeals. Almost one and one-half years later, the Administrative Review Board (the "Board" or "ARB") issued its Decision and Order of Remand ("BD&O") on April 23, 1997.² Therein, the Board rejected the undersigned's recommendation that this matter be dismissed. After reweighing the evidence, the Board found that both legitimate and "illegitimate" reasons contributed to the adverse action taken by Respondent (BD&O at 8). The Board further found that Respondent had failed to prove by clear and convincing evidence that it would have taken the same action in the absence of Complainant's protected activity (BD&O at 8). The matter was remanded to the Office of Administrative Law Judges "for a recommended decision on an appropriate remedy" (BD&O at 9, citing 42 U.S.C. § 5851(b)(2)(B)).

   On May 12, 1997, I issued an Order on Remand, granting the parties thirty (30) days in which to discuss the possibility of reaching a settlement on the remedy issue. Otherwise, the parties were to submit written briefs on the issue on or before June 11, 1997.

   This office was contacted by Complainant's counsel on June 9, 1997. At that time, counsel indicated that the parties were close to reaching a settlement. Based upon this representation, the parties were granted a one-week extension for the submission of briefs.

   On June 13, 1997, a letter from Complainant's counsel was received via facsimile, a letter in which counsel indicated that the parties had in fact reached a tentative settlement. The parties' settlement application was received in this office on July 11, 1997.

The Settlement Agreement

   The parties I settlement application includes a "Settlement Agreement" which appears to have been executed by Complainant, counsel for Complainant, and Respondent's Deputy Director. Also included is a memorandum from the U.S. Department of Energy to Respondent, authorizing the settlement, a "Joint Stipulated Request for Order Approving Settlement and Dismissal with Prejudice," and a draft "Final Order Approving Settlement Agreement and Dismissing Case."

   In pertinent part, the Settlement Agreement provides for the following payments by Respondent:

Damages and-Costs to Complainant

One year of back wages: $19,993.00
Mental and emotional distress damages: $10,000.00
Reimbursement of health insurance: $ 1,882.00
Costs, reimbursements, per diems, etc. $ 1,710.07

Total to Complainant $33,585.07

Fees to Government Accountability Project $32,572.50
Fees to Thad M. Guyer, Esq. $32,572.50
Costs to Government Accountability Project $ 6,269.92

Total to Complainant's Attorneys $71,414.93

Total Settlement Amount $105,000.00

The agreement further provides that Complainant agrees to release all claims against Respondent arising out of the instant litigation, while Respondent agrees to abandon its rights to seek judicial review of this matter.

   I have carefully reviewed the parties I Settlement Agreement and hereby find that it is fair, adequate, and reasonable in light of the record evidence and the ARB's April 23, 1997, decision. As such, I shall recommend approval of the same.

   Based upon the foregoing, and pursuant to 29 C.F.R. § 24.6 (1994), the undersigned HEREBY RECOMMENDS that the Administrative Review Board, acting under the delegation of authority from the Secretary of the United, States Department of Labor, issue a final order approving the parties' Settlement Agreement and dismissing the above-captioned matter with prejudice.

   Entered this 14th day of July, 1997, at Long Beach, California.

          DANIEL L. STEWART
          Administrative Law Judge

¹Although the case has been designated as one arising under the Clean Air Act (CAA), the parties agreed, and I concur, that the facts presented implicate the whistleblower protection provision of the Energy Reorganization Act.

²Authority to issue final agency decisions under the ERA was delegated to the Administrative Review Board on April 17, 1996. See Secretary's Order 2-96 (Apr. 17, 1996), 61 Fed. Reg. 19978 (May 3, 1996).