Truman v. Parker Excavating, Inc., 98-SDW-1 (ALJ May 13, 1998)

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USDOL/OALJ Reporter
Truman v. Parker Excavating, Inc., 98-SDW-1 (ALJ May 13, 1998)

U.S. Department of Labor
Office of Administrative Law Judges
501 W. Ocean Boulevard, Suite 4300
Long Beach, California 90802
(310) 980-3594
(310) 980-3596 FAX (310) 980-3597

DATE: May 13, 1998

CASE NO.: 98-SDW-1

In the Matter of:

ALBERT TRUMAN,
Complainant,

PARKER EXCAVATING, INC.,
Respondent.

RECOMMENDED DECISION AND ORDER APP ROVING
SETTLEMENT AND DISMISSING COMPLAINT WITHOUT PREJUDICE

This matter arises under the Safe Drinking Water Act (the "Act"), 42 U.S.C. § 300j-9(i), and the regulations promulgated thereunder at 29 C.F.R. Part 24. Respondent, Parker Excavating, Inc., appealed the Occupational Safety and Health Administration's ("OSHA") determination that Complainant, Albert Truman, was a protected employee engaging in protected activity when he was discriminately terminated.

BACKGROUND

Pursuant to due notice, this matter was originally scheduled for hearing before the undersigned administrative law judge on March 17, 1998, in Denver, Colorado. On February

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6, 1998, Administrative Law Judge Donald Mosser was appointed as settlement judge at the request of the parties. Judge Mosser presided over a settlement conference with the parties in Denver on March 5, 1998. Although the conference did not lead to an immediate settlement, the parties were able to reach an agreement shortly thereafter. A letter from Complainant's attorney dated March 12, 1998, informed this office of the settlement.

On March 23, 1998, Complainant submitted a copy of the parties' "Settlement Agreement" via facsimile and asked that this matter be dismissed. However, the agreement failed to disclose the dollar amount of the settlement.¹ On March 24, 1998, this office contacted counsel for both parties, informed them that disclosure was mandatory, and requested the filing of an uncensored settlement agreement. Moreover, a case on point and settlement memoranda issued by the Department of Labor were faxed to Respondent's attorney. This office telephoned Respondent's counsel again on April 8, 1998, to remind him of the need for revised settlement documents.

Receiving no response from Respondent, the undersigned issued an "Order Re: Status" on May 1, 1998, ordering Respondent to inform this court how it wished to proceed in this matter. On May 11, 1998, Respondent submitted via facsimile an unredacted copy of the settlement agreement. Respondent's attorney requested that the Department of Labor treat the settlement amount as confidential commercial and financial information under the Freedom of Information Act ("FOIA") as provided under 29 C.F.R. § 70.26(b). However, since the agreement did not disclose the net amount, less attorney's fees, to Complainant, this office contacted Complainant's counsel and requested that he disclose that figure. On May 13, 1998, Complainant's counsel filed via facsimile a "Final Disbursement Statement," which counsel requested be treated as confidential commercial financial information under FOIA.²

DISCUSSION

The Secretary of Labor has held that cases arising under the employee protection provisions of statutes enumerated in 29 C.F.R. § 24.1 may not be dismissed on the basis of a settlement unless the settlement has been reviewed and found to be fair, adequate and reasonable and not against the public interest. Heffley v. NGK Metals Corp., 89-SDW-2 @ 1-2 (Sec'y Mar. 6, 1990). In order for such a determination to be made, a settlement agreement must disclose the dollar amount paid to the complainant. 29 C.F.R. § 24.6; See Plumlee v. Alyeska Pipeline Serv. Co., 92-TSC-7 (Sec'y Aug. 6, 1993); Faust v. Chemical Leaman Tank Lines, Inc., 92-SDW-2 and 93-STA-15 (ARB June 13, 1996); Klock v. Tennessee Valley Auth., 95-ERA-20 (ARB May 1, 1996); McDowell v. Doyon Drilling Servs., Ltd., 96-TSC-8 (ARB May 19, 1997); Darr v. Precision Hard Chrome, 95-CAA-6 (Sec'y May 9, 1995). However, an agreement indicating only the total amount of the settlement, including attorney's fees, with no indication of the actual amount to be

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paid to the complainant, is insufficient. Tinsley v. 179 South Street Venture, 89-CAA-3 (Sec'y Aug. 3, 1989) (order of remand). In the words of the Administrative Review Board ("ARB"), "[t]his amount affects not only the Complainant's individual interest, but impacts the public interest as well, because if the amount is not fair, adequate and reasonable, other employees may be discouraged from reporting safety violations." Ezell v. Tennessee Valley Auth., 95-ERA-39 (ARB June 26, 1996) (citing Plumlee, 92-TSC-7, slip op. at 5).

After reviewing the Settlement Agreement and Final Disbursement Statement, I find the agreement to be a fair, adequate and reasonable settlement of Complainant's claims, and I believe it is in the public interest to adopt the Settlement Agreement as a basis for the administrative disposition of this matter. Furthermore, pursuant to the terms of the agreement, dismissal of the complaint will be without prejudice.

ORDER

Accordingly, IT IS HEREBY RECOMMENDED that the settlement agreement between Complainant, Albert Truman, and Respondent, Parker Excavating, Inc., be approved and that the matter be dismissed without prejudice. IT IS FURTHER RECOMMENDED that the Settlement Agreement and Final Disbursement Statement be designated as confidential commercial information and be handled in accordance with 29 C.F.R. Part 70.

Entered this 13th day of May, 1998, at Long Beach, California.

DANIEL L. STEWART
Administrative Law Judge

NOTICE: This Recommended Order will automatically become the final order of the Secretary unless, pursuant to 29 C.F.R. § 24.8, a petition for review is timely filed with the Administrative Review Board, United States Department of Labor, Room S-4309, Frances Perkins Building, 200 Constitution Avenue, NW, Washington, DC 20210. Such a petition for review must be received by the Administrative Review Board within ten business days of the date of this Recommended Order, and shall be served on all parties and on the Chief Administrative Law Judge. See 29 C.F.R. § 24.8 and 24.9, as amended by 63 Fed. Reg. 6614 (1998).

[ENDNOTES]

¹The amount of the settlement was redacted from the document submitted by the parties.

² The Final Disbursement Statement, which was executed between Complainant and his attorney when settlement funds were paid, was not served on Respondent.