Connecticut Light & Power Co. v. Secretary of U.S. Dept. of Labor

• Decision Date: 31 May 1996
• Docket Number: D,No. 776,776
• Citation: 85 F.3d 89
• Parties: , 11 IER Cases 1313 The CONNECTICUT LIGHT & POWER COMPANY, dba Northeast Utilities Service Company, Petitioner, v. SECRETARY OF the UNITED STATES DEPARTMENT OF LABOR, Respondent, John Delcore, Intervenor. ocket 95-4094.
• Court: U.S. Court of Appeals — Second Circuit

Page 89

85 F.3d 89

65 USLW 2028, 11 IER Cases 1313

The CONNECTICUT LIGHT & POWER COMPANY, dba Northeast Utilities Service Company, Petitioner, v. SECRETARY OF the UNITED STATES DEPARTMENT OF LABOR, Respondent John Delcore, Intervenor.

No. 776, Docket 95-4094.

United States Court of Appeals Second Circuit.

Argued Jan. 18, 1996.

Decided May 31, 1996.

Charles C. Thebaud, Jr., Morgan, Lewis & Bockius, Washington, DC, for Petitioner.

Anne Payne Fugett, Attorney, U.S. Department of Labor, Washington, DC (Thomas S. Williamson, Jr., Solicitor of Labor; Gail V. Coleman, Deputy Associate Solicitor; and William J. Stone, Counsel for Appellate Litigation, U.S. Department of Labor, Washington, DC, of counsel), for Respondent.

Frederick P. Amore, Branford, Connecticut, for Intervenor.

Before: KEARSE, WALKER, and HEANEY, ^* Circuit Judges.

HEANEY, Senior Circuit Judge:

The Secretary of Labor held that an employer's proffering of a settlement agreement containing provisions that would have restricted its employee's access to judicial and administrative agencies violated Section 210 of the Energy Reorganization Act of 1974 ("ERA"), 42 U.S.C. § 5851(a) (1988). The employer appeals the decision claiming that former employees are not covered by the ERA, proffering a settlement agreement does not constitute adverse action, and the statute of limitations period had expired. We affirm.

BACKGROUND

John Delcore was employed by W.J. Barney Corporation ("Barney") as a general electrical foreman from July 1985 until September 1987. Delcore supervised subcontracting work at the Millstone Nuclear Power Plant, which is operated by the Connecticut Light & Power Company ("CL & P"). On September 14, 1987, Delcore was terminated by Barney. Shortly thereafter, Delcore complained to the resident inspector of the Nuclear Regulatory Commission ("NRC") raising various allegations.

On September 30, 1988, Delcore commenced an action in state court against Barney and CL & P alleging violation of the Connecticut whistle-blower statute, violation of his free speech rights, wrongful termination of his employment in violation of public policy, tortious interference with his employment contract, and defamation. The defendants removed the action to the United States District Court for the District of Connecticut under diversity jurisdiction.

In December 1988, CL & P and Delcore entered into settlement negotiations. As a result of these negotiations, on February 8, 1989, counsel for CL & P sent a written settlement proposal to Delcore's attorney. The proposed settlement included provisions that would have restricted Delcore's ability to provide regulatory agencies with information regarding either CL & P or Barney. On February 9, 1989, Delcore's attorney spoke with CL & P's counsel by telephone and indicated that he had some concerns with respect to the agreement's provisions. ¹ On On May 11, 1989, Delcore filed a complaint with the U.S. Department of Labor. In the complaint, Delcore asserted that as a result of his complaints to the NRC and his suit against Barney and CL & P for wrongful termination, CL & P and Barney had offered him a settlement containing illegal provisions. Specifically, Delcore complained that the agreement violated Section 210 of the ERA because it would have illegally restricted his constitutional rights of free speech and his right to freely report or testify about safety violations or other acts of misconduct by CL & P and Barney. Delcore's initial complaint asserted that the illegal "course of conduct continued from February 1989 through April 25, 1989." ²

                March 28, 1989, Delcore's attorney wrote to CL & P's counsel expressing his concern that the proposed settlement agreement was overbroad and overly restrictive.   He attached a marked-up version of the proposed settlement agreement indicating which provisions Delcore found problematic.   Among the proposed deletions were the provisions that would have restricted Delcore's ability to appear as a witness or a party in any judicial or administrative proceeding in which CL & P or Barney was a party.   On April 25, 1989, CL & P terminated negotiations, informing Delcore that further settlement negotiations would not prove fruitful
                

On June 8, 1989, the District Director of the Department of Labor issued a letter declining to take action on Delcore's complaint. The District Director stated that the settlement issue was part of the underlying litigation between Delcore and his former employers. Because the underlying dispute was then before a district court, the District Director deemed the matter inappropriate for intervention. He added that the Department of Labor would "not be able to be of service" because thirty days had elapsed between the alleged discrimination and the complaint. Delcore appealed that decision to an Administrative Law Judge ("ALJ").

Both in Delcore's hearing memorandum, filed on November 30, 1989, and at the administrative hearing, held on March 13, 1990, Delcore's attorney took the position that the discriminatory behavior occurred on an ongoing basis throughout the settlement negotiations beginning in December 1988 and ending with the termination of negotiations on April 25, 1989. Delcore's memorandum asserted:

The continuing offer of the agreement to the Claimant during a series of negotiations is the violation herein. In fact, the insistence of the Respondents to leave the offensive provisions in the agreement is worse than a simple offer of the agreement and a withdrawal of the offer after an initial counter offer by the Claimant. The repeated insistence of the Respondents to retain the illegal provisions of the agreement evidences a predetermined policy and insistence by the Respondents to require the Claimant to waive essential rights of access....

(J.A. 170-71). At the hearing before the ALJ, Delcore's attorney asserted:

This was not a one time take it or leave it proposition. It was a series of ongoing discussions in January and February. It was reduced to a written offer. The written offer was presented as an invitation for counter offers and continued negotiations; therefore, when the Complainant replied in

                March of '89 rejecting the particular terms, it was not concluding the series of negotiations, but, in fact, continuing the series of negotiations.   Negotiations did not conclude finally until the Respondent's letter in April ... saying no further negotiations are possible
                

(J.A. 254).

On April 24, 1990, the ALJ ruled in favor of the defendant companies. The ALJ held as follows: 1) Section 210 was not applicable because Delcore's employment had been terminated on September 14, 1987, over one year before the alleged discriminatory action; 2) the complaint was untimely because the alleged violation, the settlement offer, occurred in February 1989, months before the complaint was filed; and 3) Delcore had failed to prove that CL & P or Barney had taken retaliatory action against a protected activity. Again, Delcore appealed the decision and briefs were filed with the Secretary of Labor.

No further action was taken until April 19, 1995, when the Secretary of Labor, Robert Reich, rejected the ALJ's decision. The Secretary held that Delcore met the statutory definition of employee because the alleged discrimination arose out of the employment relationship, and therefore, the statutory scheme was applicable. The Secretary then found that the provisions in question were particularly restrictive, contrary to public policy, and intended to deprive Delcore of his participation rights under the ERA. As a consequence, the Secretary determined that the proposed settlement provisions were adverse actions prohibited by Section 210. In addition, the Secretary held that terminating the settlement negotiations in response to Delcore's refusal to accept the provisions represented a separate and independent violation. ³ Finally, the Secretary held that Delcore's complaint was timely made. In conclusion, the Secretary of Labor ordered CL & P and Barney "to refrain from discrimination, to post and circulate [the] decision, and to compensate Complainant for costs and expenses." CL & P appeals the Secretary's decision with respect to each issue.

ANALYSIS

This action is based on Section 210 of the ERA, a remedial statute intended to shield employees from adverse action taken by their employers in response to employees' complaints of safety violations. Section 210 provides in part:

(a) Discrimination against employee

No employer, including a [NRC] licensee, an applicant for a Commission license, or a contractor or a subcontractor of a Commission licensee or applicant, may discharge any employee or otherwise discriminate against any employee with respect to his compensation, terms, conditions, or privileges of employment because the employee (or any person acting pursuant to a request of the employee)--

(1) commenced, caused to be commenced, or is about to commence or cause to be commenced a proceeding under this chapter or the Atomic Energy Act of 1954, as amended [42 U.S.C. 2011 et. seq.], or a proceeding for the administration or enforcement of any requirement imposed under this chapter or the Atomic Energy Act of 1954, as amended;

(2) testified or is about to testify in any such proceeding or;

(3) assisted or participated or is about to assist or participate in any manner in such a proceeding or in any other manner in such a proceeding or in any other action to carry out the purposes of this chapter or the Atomic Energy Act of 1954, as amended [42 U.S.C.2011 et. seq.].

42 U.S.C. § 5851(a) (1988) (amended 1992).

I. Was Delcore an Employee for Purposes of Section 210?

The initial question before us is whether Delcore falls within the protected class of "employee" as defined by Section The Secretary grounds his interpretation on two bases: 1) the broad remedial purpose of the statute, and 2) the legislative history of Section 210. The Secretary...