Graham v. Digioia Brothers Excavating, Inc., 2001-STA-31 (ALJ Oct. 3, 2001)

U.S. Department of Labor

Office of Administrative Law Judges Seven Parkway Center - Room 290 Pittsburgh, PA 15220 (412) 644-5754 (412) 644-5005 (FAX)

Issue date: 03Oct2001

CASE NO.: 2001-STA-31

In the Matter of:

BRETT GRAHAM
    Complainant

    v.

DIGIOIA BROTHERS EXCAVATING, INC.
    Respondent

   Brett Graham filed a complaint alleging that DiGioia Brothers Excavating, Inc., violated the employee protection provisions of the Surface Transportation Assistance Act of 1982, 49 U.S.C. § 31105. This matter was originally scheduled for hearing before the undersigned on May 21, 2001. The hearing date was then continued until September 10, 2001.

   On September 4, 2001, the Office of the Solicitor submitted notice that the parties had reached a settlement on all contested issues and that the hearing scheduled for September 10, 2001, was not necessary. Accordingly, the hearing was cancelled. On September 24, 2001, the parties submitted the following Stipulation And Settlement Agreement:

1. Without admitting any noncompliance with the Surface Transportation Assistance Act of 1982 (49 U.S.C. 31105), Respondent hereby agrees that it will not discharge or in any manner discriminate against any of its employees or employees of other employers due to employee's exercise of any rights protected by the Act.

2. Respondent agrees to pay to Brett Graham the amount of $5,000.00 in back wages within 10 days of execution of this Agreement.

3. Respondent agrees to reinstate Brett Graham to his former position at a rate of pay of $11.50 per hour with full seniority and employment status reflective of his original hire date of May 4, 1998 including any and all benefits. Respondent agrees to return Brett Graham to his former position starting on the first Monday following execution of this agreement. Respondent further agrees to withdraw from Brett Graham's personnel files all copies of adverse references to his protected activity and resulting discharge.

4. Complainant agrees that in consideration for the agreements and promises herein of Respondent, that all claims and relief sought by Complainant are fully satisfied by Respondent.

5. Complainant agrees to join with Respondent in a stipulation to dismiss with prejudice this action upon delivery to the Department of Labor, Office of the Solicitor in Cleveland, Ohio a check in the amount of $5,000.00 less legal payroll deductions made payable to Brett Graham.

6. Each party hereby agrees to bear its own attorney's fees, costs and other expenses incurred by such party in connection with any stage of the above-referenced proceeding including, but not limited to, attorney's fees which may be available.

   Pursuant to STAA §31105(b)(2)(c), "[b]efore the final order is issued, the proceeding may be ended by a settlement agreement made by the secretary, the complainant, and the person alleged to have committed the violation." Under regulations implementing the STAA, the parties may settle a case at any time after the filing of objections to the Assistant Secretary's preliminary findings, "if the participating parties agree to a settlement and such settlement is approved by the Administrative Review Board ... or the Administrative Law Judge." 29 C.F.R. § 1978.111(d)(2). The regulations direct the parties to file a copy of the settlement with the "Administrative Law Judge or the Administrative Review Board as the case may be." Id.

   On the basis of the foregoing, it is hereby ORDERED that the settlement agreement entered into by the parties on September 24, 2001, is APPROVED and this matter be dismissed with prejudice.

       GERALD M. TIERNEY
       Administrative Law Judge