dissenting:
Although deference is owed to an agency’s interpretation of statutes in its area of “special competence,” see Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842-45, 104 S.Ct. 2778, 2781-83, 81 L.Ed.2d 694 (1984), here the Secretary of Labor (“Secretary”) overstepped his bounds *98by interpreting § 210 of the Energy Reorganization Act of 1974, 42 U.S.C. § 5851, in an unreasonable manner. Even assuming that a former employee is an “employee” within the meaning of § 210, a proposition with which I do not agree, it is plain to me that the Secretary erred in concluding that Connecticut Light & Power (“CL & P”) engaged in an “adverse employment action” against Delcore within the meaning of the ERA.
A. Is Delcore an “employee?”
The majority and I agree that the first question for resolution is whether Delcore falls within the protected class of “employee” as defined by § 210. CL & P argues that Delcore is not an “employee” within the meaning of the ERA both because his employment was terminated more than a year before he filed his § 210 complaint, and because he was the employee of a subcontractor that had performed work at a CL & P-owned nuclear plant and he never worked directly for CL & P. Although Delcore’s employment by a subcontractor does not, standing alone, take Delcore outside the scope of § 210 protection, see Adams v. Dole, 927 F.2d 771, 777 (4th Cir.), cert. denied, 502 U.S. 837, 112 S.Ct. 122, 116 L.Ed.2d 90 (1991), I think that his termination from employment prior to the action complained of does.
I recognize that in interpreting analogous statutes, some of our sister circuits have held that former employees may be covered where the alleged discrimination against them is related to or arises out of the employment relationship. See, e.g., Charlton v. Paramus Bd. of Educ., 25 F.3d 194, 198-200 (3d Cir.) (Title VII), cert. denied, — U.S. -, 115 S.Ct. 590, 130 L.Ed.2d 503 (1994); Passer v. American Chem. Soc’y, 935 F.2d 322, 330-331 (D.C.Cir.1991) (Age Discrimination in Employment Act (“ADEA”)); EEOC v. Cosmair, Inc., L’Oreal Hair Care Div., 821 F.2d 1085, 1088 (5th Cir.1987) (ADEA); Dunlop v. Carriage Carpet Co., 548 F.2d 139, 147 (6th Cir.1977) (Fair Labor Standards Act). However, I am not persuaded that Congress intended that former employees fall within the scope of § 210’s protection.
In Robinson v. Shell Oil Co., the Fourth Circuit held that the definition of “employees” in Title VIPs anti-retaliation provision was unambiguous in its exclusion of former employees. 70 F.3d 325, 328-29 (4th Cir.1995) (in banc), cert. granted, - U.S. -, 116 S.Ct. 1541, 134 L.Ed.2d 645 (1996). The Fourth Circuit further stated that “courts may stray beyond the plain language of unambiguous statutes” only under “rare and narrow” circumstances such as where “the literal application of statutory language would lead to an absurd result.” Id. (declining to apply the exception).
Similarly, in Reed v. Shepard, the Seventh Circuit held that a former employee could not make out a prima facie case of retaliation in violation of Title VII where “the alleged retaliatory activities took place after the termination of [her] employment and was therefore not an adverse employment action.” 939 F.2d 484, 492-93 (7th Cir.1991). The Reed Court stated: “[I]t is an employee’s discharge or other employment impairment that evidences actionable retaliation, and not events subsequent to and unrelated to his employment.” Id.
The majority suggests that because the terms “employee” and “any worker” are used interchangeably in the legislative history of the ERA, former employees must be covered. This argument is flawed. The plain meaning of the term “any worker” does not include former workers. As the Supreme Court has acknowledged, “courts must presume that a legislature says in a statute what it means and means in a statute what it says there.” Connecticut Nat’l Bank v. Germain, 503 U.S. 249, 253-54, 112 S.Ct. 1146, 1149, 117 L.Ed.2d 391 (1992). See also United States v. Ron Pair Enters., Inc., 489 U.S. 235, 241, 109 S.Ct. 1026, 1030, 103 L.Ed.2d 290 (1989) (“[W]here, as here, the statute’s language is plain, ‘the sole function of the courts is to enforce it according to its terms.’ ” (quoting Caminetti v. United States, 242 U.S. 470, 485, 37 S.Ct. 192, 194, 61 L.Ed. 442 (1917))). The term “employee” is a straightforward unambiguous one. When one’s employment with his employer ends, one ceases to be an “employee.” With all due deference to the Secretary, I believe that his conclusion that § 210 applied to persons that once were, but no longer are, em*99ployees was unreasonable because the statute is unambiguous.
B. Did CL & P engage in an adverse employment action?
Even if Deleore, as a former employee, could still be considered an “employee” within the meaning of § 210,1 cannot agree with the majority that CL & P engaged in an adverse employment action against him, and believe that the Secretary’s determination to that effect to be contrary to law.
The action in question — CL & P’s making and then, when Deleore refused it, withdrawing a settlement offer — cannot properly be characterized as “adverse” to Deleore because Deleore had no right to a settlement. The notion that § 210 creates a right not to be bothered with a settlement offer that the offeree is free to refuse seems to me nonsensical. The majority suggests that because Deleore had a right not to be terminated from his employment in violation of § 210, he also had a right to a post-termination settlement of his lawsuit against CL & P that did not contain certain gag provisions. I am aware of no precedent for the extraordinary and novel proposition that a litigant has a right to a settlement, nor does the majority cite any. Revealingly, in his brief, Deleore refers not to a “right of settlement” but rather, to a “hope of settlement.” Indeed, in his April 1995 order, the Secretary of Labor conceded that CL & P “ha[s] no obligation to settle a claim against [it] and can under normal circumstances break off settlement negotiations for any reason, or no reason at all.” The fact that CL & P offered terms of settlement that Deleore indicated were unacceptable and that CL & P then withdrew left Deleore no worse off than he was before settlement negotiations began. I believe that in these circumstances, the Secretary’s conclusion that Deleore suffered an employment action that was adverse was contrary to law.
Moreover, I cannot agree that what CL & P did here was even an “employment action.” The majority claims that the alleged discrimination need only “ar[i]se out of the employment relationship.” But the “discrimination” alleged by Deleore arose out of his employment relationship with CL & P only to the extent that there would have been no lawsuit to settle had Deleore not at one time been employed by a subcontractor of CL & P. This connection is too tenuous to support a finding of adverse employment action. The majority states that “[t]he settlement agreement was an attempt to resolve the final terms of Delcore’s employment.” I cannot agree. At the time of the settlement negotiations, Deleore was no longer employed. Therefore, there were no “terms” to resolve.
The situation here is markedly different from that in Secretary of Labor v. Mullins, 888 F.2d 1448 (D.C.Cir.1989), a case on which the majority relies. In Mullins, the District of Columbia Circuit held that an offer by an employer to re-employ a miner under illegal and dangerous conditions constituted a violation of the Mine Safety and Health Act. Id. at 1451-52. Had CL & P offered to reemploy Deleore on the condition that he not report safety concerns, the situation would parallel that in Mullins. In such a case, the “terms” and “conditions” of employment— specifically, hiring — would be affected and there would be an employment action. This is not such a case, however.
The majority equates an employer’s effort to induce an employee to relinquish his § 210 rights under threat of termination with the attempt to do so by means of a post-termination settlement agreement. The majority claims that both types of actions are “aimed at the same objective: keeping an employee quiet.” Although their objectives may be the same, the actions are dissimilar. In the former, the employee is at risk of losing his employment and the employer is seeking to alter the terms of employment. In the latter, a former employee is only at risk of losing, as Delcore’s brief puts it, the “hope of settlement” of a post-termination lawsuit. That Congress intended to protect individuals in the former situation, and not in the latter, is in no way inconsistent or problematic.
Subsequent to the events of this case, the Nuclear Regulatory Commission (“NRC”) promulgated a regulation proscribing restrictive settlement provisions, such as those sought by CL & P from Deleore, with re*100spect to complaints filed with the Department of Labor. I do not take issue with the NRC’s authority to promulgate such regulations, particularly when it does so after allowing for notice and comment. I do, however, object to the majority’s holding, which is tantamount to approving the Secretary’s enforcement of these subsequent regulations upon CL & P for conduct that preceded their promulgation.
I respectfully dissent.