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| October 4, 2008 DOL Home > OALJ Home > Whistleblower Collection |
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USDOL/OALJ Reporter Esposito v. Gypsum Express, Ltd., 2001-STA-9 (ALJ Mar. 12, 2001)
Date: March 12, 2001 Case No.: 2001-STA-0009 In the Matter of
JOHN M. ESPOSITO,
v.
GYPSUM EXPRESS, LTD.,
AND DISMISSING COMPLAINT
The attached settlement agreement by the parties fairly, reasonably, and adequately disposes of the allegations raised in the complaint. Accordingly, IT IS ORDERED that the settlement agreement is approved and that this proceeding be and hereby is, dismissed with prejudice.
FLETCHER E. CAMPBELL, JR.
FEC/cmp
SETTLEMENT AGREEMENT AND
This is a Settlement Agreement and General Release ("Agreement") between GYPSUM EXPRESS, LTD. ("Gypsum") and JOHN M. ESPOSITO ("Mr. Esposito") in full and complete settlement of all issues concerning Mr. Esposito's employment, and the separation of Esposito from his employment with Gypsum. The term "Gypsum" shall also mean the company, as well as all of its former and current officers, directors, employees, vendors, distributors, and agents including, but not limited to, outside attorneys. The term "Esposito" shall include his heirs, executors, administrators, assigns and immediate family.
1. Mr. Esposito was employed by Gypsum as an over-the-road driver for its Jacksonville, Florida terminal from December 2, 1998 until December 5, 1998. 2. Mr. Esposito voluntarily quit his employment when he failed to call in or pick up his delivery load on Monday, December 7, 1998. 3. On or about January 6, 2000, Mr. Esposito filed a complaint through his attorney, Paul O. Taylor, Esq., with the Department of Labor under §31105 of the Surface Transportation Assistance Act, 2001-STA-0009, claiming that Gypsum "blackballed" Mr. Esposito on DAC Services because he complained about Gypsum's alleged violations of Department of Transportation and federal commercial motor carrier safety regulations ("STAA Claim"). 4. Mr. Esposito has made no claim for reinstatement. 5. All wages and benefits relating to his employment with Gypsum have been paid to Mr. Esposito. 6. Gypsum has denied and vigorously contested the allegations contained within the STAA Claim. 7. NOW, THEREFORE, to resolve these matters and avoid litigation, the parties agree to SETTLE and TERMINATE the STAA Claim, and any disputes, including the claims which could have been asserted in Mr. Esposito's STAA Claim, or which he could have asserted through a complaint filed in state or federal court, and any and all other claims relating to Mr. Esposito's employment with and his separation from Gypsum.
In consideration of the mutual promises, covenants, and obligations contained in this Agreement, the parties, intending to be legally bound, agree as follows: 1. Upon execution of this Agreement and General Release, Gypsum shall pay a settlement amount of Fifteen Thousand Dollars ($15,000.00). 2. The parties agree that the Fifteen Thousand Dollar ($15,000.00) payment specified in paragraph 1 above is not intended to represent compensation for lost wages, but is being offered in consideration for Mr. Esposito's agreement to resolve this matter and thus avoid the uncertainty of litigation. It is additionally agreed that the payment made hereunder is for non-economic recovery for Mr. Esposito's alleged personal and tort injuries and as such, is in full and complete settlement of any claims he has or had for pain and suffering, emotional distress, anxiety and mental anguish. 3. Within thirty (30) business days after receipt of notice of the approval of this Agreement by Judge Campbell, as set forth in paragraph 20, Gypsum will pay over the settlement amount ($15,000.00) as provided in paragraphs 4 and 5 below. Gypsum will send Mr. Esposito IRS Form 1099 reporting the payment of the $15,000.00 as damages in settlement of the claim. Until such time as payment becomes due, Gypsum's attorneys, Bond, Schoeneck & King, LLP, will hold the $15,000.00 settlement amount in an escrow account. 4. From the settlement amount held in escrow, Gypsum, through its attorneys, agrees to pay Nine Thousand Dollars ($9,000.00) of the settlement amount specified in paragraph 1 by check payable to "John M. Esposito" and will deliver the check to John M. Esposito at 8628 West Sturbridge Circle, Jacksonville, Florida 32244. The check will be sent by certified mail, return receipt requested, within the time period specified in paragraph 3. 5. From the settlement amount held in escrow, Gypsum, through its attorneys, agrees to pay the remaining Six Thousand Dollars ($6,000.00) of the settlement amount specified in paragraph 1 by check payable to "Paul O. Taylor, Esq., as attorney for John M. Esposito" and will deliver the check to Paul O. Taylor at the Trucker's Justice Center, 4260 Heine Strasse, Eagan, Minnesota 55122. The check will be sent by certified mail, return receipt requested, within the time period specified in paragraph 3. 6. Mr. Esposito agrees that he shall be solely responsible for any taxes that may be determined to be due and for reporting requirements, if any, concerning the foregoing payments, and that Gypsum has not made any representations to him about the tax consequences, if any, of receipt of the settlement amount. It is the parties' intent that the payment to Mr. Esposito does not represent payment for wages, but is rather intended to compensate Mr. Esposito for his claims for pain and suffering, emotional distress, anxiety and mental anguish. 7. Gypsum agrees to remove or have removed, all documents regarding Esposito's employment presently submitted to DAC Services. Gypsum, however, retains the right to respond to any employment verification inquiry which may arise from time to time but in response to such inquiries will furnish only dates of employment, the position held, and any other information required by law. 8. Mr. Esposito acknowledges that he no longer has any employment rights with Gypsum, he will not reapply for employment with Gypsum, and Gypsum shall have no obligation to consider any employment application that Mr. Esposito may submit. 9. Mr. Esposito agrees that he will not engage in any type of conduct that involves the making or publishing of written or oral statements or remarks (including, but not limited to, the repetition or distribution of derogatory remarks, allegations, negative reports or other comments) which are disparaging, deleterious or damaging to the integrity, reputation or goodwill of Gypsum, John Wight, Dennis Plucinik, and any and all former and current officers, directors, shareholders, employees and agents of Gypsum (in their individual and representative capacities). In the event that Mr. Esposito breaches this promise, and such a breach is established by a competent court, Mr. Esposito agrees to refund to Gypsum all payments made pursuant to this Agreement and to pay for all costs, including reasonable attorneys' fees, incurred by Gypsum in defending against Mr. Esposito's breach of this Agreement. 10. Mr. Esposito accepts and agrees that he will not contact, threaten or harass Gypsum, including, but not limited to, John Wight and Dennis Plucinik (including all members of their immediate families); all former and current officers; directors; shareholders; employees; and, agents (in their individual and representative capacities). 11. The parties agree not to disclose the terms of this Agreement and General Release to any third party without prior written consent from the other party except as to their attorneys, accountants, financial advisors and immediate family (but only on the condition that these individuals agree to keep such matters confidential), to the extent compelled by law, or in connection with any alleged breach of this Agreement. Nothing in this Agreement shall prevent Mr. Esposito from communicating with, and providing information to, any state or federal government agency concerning his employment with Gypsum and this Agreement, if required by law. 12. A violation of paragraphs 9, 10 or 11 stated above, shall be considered a breach of this Agreement and General Release. If Gypsum learns of any actual or threatened violation of any of paragraphs 9, 10 or 11, then Gypsum, through its counsel, shall contact Mr. Esposito's attorney to attempt to have such violations cured, unless Gypsum believes that such efforts would not be effective. It is understood that any violation of the terms and provisions of this clause would cause immediate and irreparable harm, loss and damages which could not be adequately compensated by a monetary award. Without limiting any of the other remedies available to Gypsum, at law or in equity, it is agreed that any actual or threatened violation of any of the provisions of this clause may be immediately restrained or enjoined by any Court of competent jurisdiction and that any Temporary Restraining Order or emergent preliminary injunction may be issued by any court of competent jurisdiction without notice and without bond. In the event that any proceedings initiated by Gypsum are found to result from the actual violation of any of the provisions of paragraphs 9, 10 or 11, Mr. Esposito shall be liable for costs and expenses, including without limitation, reasonable attorneys' fees incurred by Gypsum in connection with such proceedings. 13. Mr. Esposito acknowledges that this settlement is not an admission of liability by Gypsum which has and continues to deny any liability, but enters into this settlement as a compromise of all claims, and to avoid the costs and uncertainty of further litigation. 14. Esposito represents that neither he nor any member of his immediate family will file any complaints, charges or claims (civil, administrative, or criminal) against Gypsum with any court or agency based on any action by Gypsum which occurred prior to the date of this Agreement. In the event a lawsuit is commenced, any action initiated, based on claims that Mr. Esposito has released, Mr. Esposito agrees to refund to Gypsum all payments made pursuant to this Agreement and to pay for all costs incurred by Gypsum including reasonable attorneys' fees, in defending against Mr. Esposito's claim. 15. Mr. Esposito unconditionally RELEASES and DISCHARGES Gypsum from any and all causes of action, suits, damages, claims, proceedings, and demands that he ever had, or has, or may have against Gypsum, asserted or unasserted, directly or indirectly, whether known or unknown, arising out of, or related in any way to his employment or his separation from employment, including but not limited to: any and all breach of contract claims, tort claims, claims of wrongful discharge, claims of abusive discharge, claims for breach of employment contract, defamation claims, claims under Title VII of the Civil Rights Act of 1964, as amended, the Equal Pay Act, the Age Discrimination in Employment Act, the Americans with Disabilities Act, any and all other applicable non-discrimination statutes, the Employee Retirement Income Security Act, the Fair Labor Standards Act, Florida Labor Law, New York Labor Law, all claims alleged or which could have been alleged in Case 2001-STA-0009, claims under the Federal Motor Carrier and Safety Act, Florida Transportation Law, New York Transportation Law, as well as all other Florida and New York Statutes and Public Laws relating to employment and transportation, any county or municipal laws or ordinances relating to employment and transportation, or the common law of the State of Florida or the State of New York or any other state. 16. Gypsum, in consideration of Mr. Esposito's release and waiver of all claims against Gypsum arising out of Mr. Esposito's employment with Gypsum and the termination of that employment, and other good and valuable consideration, receipt of which is hereby acknowledged, unconditionally RELEASES and FOREVER DISCHARGES Mr. Esposito from any and all claims and causes of action, suits, damages, proceedings, and demands, held jointly or severally, that it ever had, or has or may have against Mr. Esposito, asserted or unasserted, directly or indirectly, whether known or unknown, from the beginning of Mr. Esposito's employment with Gypsum to the date of this Agreement. 17. Mr. Esposito acknowledges that:
18. Mr. Esposito acknowledges that he has been given a reasonable period of time to consider this Agreement and additionally acknowledges that he is receiving consideration above what he would have otherwise been entitled to as an employee. 19. This Agreement and General Release constitutes the entire agreement between the parties and may be amended only by a writing signed by both parties. In witness whereof, this Agreement and General Release is to be executed in duplicate and shall become effective upon execution by both parties. 20. Mr. Esposito, through his attorney, will notify Judge Fletcher Campbell, the Administrative Law Judge ("ALP) in Case 2001-STA-0009, that the parties have reached a Settlement Agreement after the execution of this Agreement pursuant to 29 C.F.R. §1978.1119(d)(2). The parties recognize that this settlement is subject to the approval of Judge Campbell, and, if necessary, the parties will execute any further documents required to effectuate the settlement. If, for whatever reason, Judge Campbell does not accept the terms of this Settlement Agreement, the parties agree that they will request that the ALJ mediate the settlement. 21. Should any provision of this Agreement be declared unenforceable by a court or other tribunal of competent jurisdiction, it shall not adversely affect the enforceability of any other provision, including the General Release. 22. This Agreement shall be construed and enforced in accordance with and governed by the statutes and common law of the State of New York. Any disputes involving the interpretation of this Agreement and General Release or Mr. Esposito's employment or separation from employment with Gypsum, shall be governed by the laws of the State of New York. The jurisdiction of any proceeding between the parties arising out of, or with respect to this Agreement shall be in a court of competent jurisdiction in New York, and venue shall be in Onondaga County. Each party agrees to be subject to the personal jurisdiction to the courts of New York.
Dated: March 5, 2001
STATE OF NEW YORK
GYPSUM EXPRESS, LTD.
and
John M. Esposito
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