Polydorou v. A.J. Clarke Management Corp., 88-CAA-7 (ALJ Mar. 13, 1989)

USDOL/OALJ Reporter
Polydorou v. A.J. Clarke Management Corp. , 88-CAA-7 (ALJ Mar. 13, 1989)

U.S. Department of Labor
Office of Administrative Law Judges
2600 Mt. Ephraim Avenue
Camden, New Jersey 08104

DATE: March 13, 1989
Case No. 88-CAA-00007

IN THE MATTER OF

PAUL POLYDOROU
Complainant

A. J. CLARKE MANAGEMENT CORP.
AND 50 WEST 67th STREET, INC.,
Respondents

Louie Nikolaidis, Esq.
For the Complainant

Sanford Oxfeld, Esq.
For the Respondents

BEFORE: THOMAS W. MURRETT
Administrative Law Judge

RECOMMENDED DECISION APPROVING SETTLEMENT
AND DISMISSING COMPLAINT

In the course of hearing on this matter under the whistleblower provisions of the Clean Air Act, 42 U.S.C. 7622, the parties reached accord on a settlement agreement, and submitted it to the undersigned for a settlement order under the provisions of 29 CFR 18.9. That Settlement Agreement is attached hereto as Appendix A.

The settlement agreement encompasses matters arising under various laws, only one of which is the Clear Air Act. My authority over settlement agreements is limited to such statutes as are within my

[Page 2]

jurisdiction and is defined by the applicable statute. See Paul Poulos v. Ambassador Fuel Oil Co., Inc., 86 CAA-1, Secretary's Order Approving Settlement, issued November 2, 1987; Aurich v. Consolidated Edison Company of New York, Inc., Case No. CAA-2, Secretary's Order Approving Settlement, issued July 29, 1987. Accordingly, I have limited my review of the settlement agreement to determining whether its conditions are a fair, adequate and reasonable settlement of complainant's allegations that Respondent violated Section 7622 of the Clear Air Act.

Pursuant to 29 CFR 18.9(b)(2), the entire record upon which this order is based consists solely of the complaint, notice of administrative determination, and the agreement.

I find the terms of the agreement within the scope of my authority to be fair, adequate and reasonable, and I, therefore, recommend that the Secretary of Labor approve the settlement.

Accordingly, I also recommend that the complaint in this case be DISMISSED.

THOMAS W. MURRETT
Administrative Law Judge

UNITED STATES DEPARTMENT OF LABOR
OFFICE OF ADMINISTRATIVE LAW JUDGES

CASE NO.:88-CAA-0007 (TWM)

IN THE MATTER OF
PAUL POLYDOROU,

Complainant,

50 WEST 67th STREET CORP,

Respondant.

STIPULATION OF SETTLEMENT AND ORDER

WHEREAS, Paul Polydorou ("Polydorou") was employed by 50 West 67th Street Corporation ("50 West") as a porter until his discharge on March 28, 1988, and

WHEREAS, Polydorou has filed a Complaint with the United States Department of Labor claiming a retaliatory discharge, Docketed Case No.: 88-CAA-0007, before the Office of Administrative Law, and

WHEREAS, Patrick McKinney ("McKinney") was employed by 50 West as a part-time relief man until his discharge on August 26, 1987, and

WHEREAS, McKinney has filed a Complaint under the New York Whistleblower Act, Docketed Index No.: 16361/88, and

WHEREAS, A.J. Clarke Management Corporation ("A.J.Clarke") is the managing agent for 50 West.

WHEREAS, 50 West is the owner of a 64 unit residential property located at 50 West 67th Street, New York City, and

WHEREAS, both Polydorou and McKinney have filed additional claims against 50 West and A.J. Clarke, including, but not limited to, grievances with their Union, Local 32 B&J SEIU, claiming wrongful discharge, and

WHEREAS, all the parties hereto desire to amicably resolve and settle their differences,

IT IS AGREED AS FOLLOWS:

1. Polydorou and McKinney release and give up any and all claims and rights they have, either jointly or individually, against 50 West and A.J. Clarke, both jointly and individually, arising out of their employment and termination from 50 West. Specifically, they retain any possible claims under the N.Y.S. Workers Compensation Act. This releases all claims, including those of which Polydorou and McKinney are not aware and those not mentioned in this Release. This Release applies to all claims resulting from anything which has happened up to the date of the execution of this Settlement Agreement and Release. Polydorou specifically releases, inter alia, the following claims: (a) His Complaint with the U.S. Department of Labor, Docketed Case No.: 88-CAA- 0007, (b) His grievance with Local 32 B&J, (c) His Complaints before OSHA, and, (d) His charge before the National Labor Relations Board. McKinney specifically releases, inter alia, the following claims: (a) His Complaint, in the Supreme Court of New York, Docketed Index No. 16361/88, (b) His grievance with Local 32 B&J, (c) His Complaints before OSHA, and (d) His charge before the National Labor Relations Board.

2. Polydorou and McKinney will be paid jointly a total of Thirty-Six Thousand ($36,000.00) Dollars, plus accrued interest, in full payment for making this Settlement and Release. The terms of payment are more fully set forth at Appendix A. The manner in which Polydorou and McKinney distribute said Settlement proceeds is to be determined between themselves; 50 West and A.J. Clarke having made this payment to them jointly have no interest in how it is distributed. Polydorou and McKinney agree that they will not seek any further payments from 50 west and/or A.J. Clarke.

3. Although this Settlement #agreement is made on behalf of both 50 West and A.J. Clarke, the record reflects that A.J. Clarke, as managing Agent, wag dismissed as a party-Respondent. The Settlement proceeds are the responsibility of 50 west.

4. Clifton and Schwartz, the Attorneys for Polydorou and McKinney, will hold said Settlement proceeds in escrow until all existing claims have been withdrawn or dismissed with prejudice and Sanford R. Oxfeld, Esq., the Attorney for 50 West and A.J. Clarke, has been so notified and authorizes the release of the funds from escrow.

5. Polydorou and McKinney agree not to harass any owner or tenant at 50 west, and will not communicate with any owner or tenant if requested not to do so by said owner or tenant.

6. It is the intent of this Settlement Agreement and Release to resolve all existing and potential future disputes and litigation. Specifically Polydorou and McKinney agree, in addition to withdrawing or dismissing all existing claims, to take no future legal action arising out of their employment and termination from either 50 West 67th Street or A.J. Clarke.

7. In addition to Polydorou and McKinney being bound by this Release, anyone who succeeds to their rights and responsibilities, such as their heirs or the Executor of their Estate, is also bound. This Relese is made for the benefit of 50 West, its owners and tenants, and A.J. Clarke, its officers, agents, employees, and all who succeed to their rights and responsibilities, such as their assigns.

8. All the parties acknowledge and agree that they understand the terms and conditions of this Agreement and have entered into same freely and voluntarily.

9. The parties acknowledge and agree to be bound by the terms and conditions of this Agreement finding it to be both fair and equitable under all the circumstances surrounding this matter.

10. The parties acknowledge and agree that the terms and conditions of this Agreement are subject to the ratification and approval of the Board of Directors of 50 West. The President of the Board, the managing agent, and the Attorney to the Board, all warrant that they will recommend ratification.

11. The parties acknowledge aid agree that they have entered into this Agreement with a full understanding of their rights and with the advice of counsel.

12. By entering into this Settlement and Release, neither 50 West, nor A.J. Clarke, admit any wrong doing or that Polydorou and McKinney were improplerly terminated. Likewise, by entering into this Settlement and Release, neither Polydorou nor McKinney admit that their claims and charges lacked merit.

13. The parties acknowledge and agree that this Settlement Agreement and Release contains the entire understanding of the parties and may not be altered, amended or modified except by a writing signed and duly authorized by all parties hereto.

14. 50 west and A.J. Clarke agree to give neutral reference to any prospective employer seeking information as to the employment history of Polydorou or McKinney at 50 West.

15. The parties agree that the terms of this Settlement shall not be disclosed to any non-party to the law suit; except that the Board of 50 West may disclose the terms to the shareholders.

DATED: Feb. 16-88 PAUL POLYDOROU

DATED: 2/16/89 PATRICK W. McKINNEY

DATED: 2/23/89 MICHAEL D. GRABOW, VICE
PRESIDENT A.J. CLARKE
MANAGEMENT CORPORATION

DATED: 2/23/89 NADA ORLOFF, PRESIDENT
50 WEST 67th STREET CORP.

DATED: 2/16/89 SANFORD R. OXFELD, ESQ.
Attorney for Respondent

DATED: 2/16/89 LOUIE NIKOLAIDIS, ESQ.
Attorney for Polydorou
and McKinney

SO ORDERED:

[Editor's note: Judge Murrett did not sign the agreement]

THOMAS W. URRETT, ALJ

DATED: [Editor's note: Judge Murrett did not insert a date at this location]

APPENDIX A

The terms of the payment of the Settlement of the agreed upon sum of Thirty-Six Thousand ($36,000.00) Dollars, as per Paragraph 2, shall be as follows:

1. Nine Thousand ($9,000.00) Dollars shall be paid to Clifton & Schwartz, as Attorneys for Polydorou and cKinney, on or before March 3, 1989.

2. An additional Twelve Thousand ($12,000.00) Dollars shall be paid to Clifton & Schwartz, as Attorneys for Polydorou and McKinney, on or before July 5, 1989.

3. An additional Fifteen Thousand ($15,000.00) Dollars shall be paid to Clifton & Schwartz, as Attorneys for Polydorou and McKinney, on or before September 5, 1989.

4. Interest compounded daily at the rate of nine (9%) percent, shall be added on to any unpaid balance existing after March 3, 1989.

5. 50 West may prepay at any time it so desires.