DATE: April 17, 1995
CASE NO.: 95-STA-9
COMPLAINT NO. 9160094013509
IN THE MATTER OF:
CYNTHIA A. BELL,
Complainant
v.
DIGBY SOUTHWEST, INC.,
Respondent
DECISION AND ORDER - APPROVAL OF SETTLEMENT
AND DISMISSAL OF CASE
Pursuant to section 405 of the Surface Transportation
Assistance Act of 1982, the complainant's complaint was referred
to this Office 11/22/94 by the Regional Administrator,
Occupational Safety and Health Administration, for further
proceedings under 29 CFR 1978.104.
The matter was set for 1/10/95 trial by 12/9/94 Notice/Pre-
Trial Order, with a Show Cause Order issued to complainant,
referable to the late filing of her complaint. She responded to
this Show Cause Order 12/14/94.(7)[1]
This Office, as of 1/6/95, had not received Digby's ordered
Pre-Trial Statement; but Digby's 1/4/95 Letter of Concern (15) as
to its response to Ms. Bell's outstanding subpoenas was received.
Complainant's Pre-Trial Statements were filed as of 1/4/95. (12,
13).
The ALJ held a conference call with complainant and Digby
Southwest Inc. (Digby) on 1/6/95. A telephone reporter was
unavailable at that time.
The ALJ's 2/10/95 Letter Order/Notice to Parties sets forth
the occurrences at 1/6/95 conference call, the basis for the
hearing's cancellation, as well as the post-1/6/95 occurrences
and submissions which gave rise to the 2/10/95 Letter Order. (The
post 1/6/95 pre 3/18/95 documents and submissions received at
this Office are described and identified on A through G of the
"Procedural History - ALJ Exhibit List".)
As of 3/13/95 Digby's copy of the ALJ's 2/10/95 Letter
Order was returned to this Office with advice from the U.S.
Postal Service it had been refused by Digby/Mr. Lessard. The
ALJ's 3/14/95 Order to Digby followed. (Digby receptionist
advised this Office's staff 3/15/95 Mr. Lessard, Safety Director
[PAGE 2]
was no longer in their Tucson office; Mr. Wid Wilmont was now
Safety Director.)
Controller Kevin Collins' 3/18/95 letter to the ALJ was
thereafter received. As a result the ALJ's 3/31/95 Orders to
Digby, and Order to Complainant followed. These Orders
reflected, at page 2, next to last paragraph, the receipt of a
copy of Ms. Bell's 1/30/95 two page letter to the Drivers License
Bureau, Tallahassee Florida. This letter attached nine pages of
various miscellaneous documents Ms. Bell identifies on pg. 4 of
her 1/30/95 letter, most of which appear referable to a 1991
Florida event.
Since the 3/31/95 Orders, Safety Director Wid Wilmot's
4/3/95 letter has been received.(28). It supplements and
explains Digby's Agreement. It indicates Digby, on inquiries
from prospective employers has only verified the dates
complainant worked for Digby, her position with them; they did
not release any information regarding accidents or make any
subjective comments about Ms. Bell on these inquiries; and that
with the DAC changes Digby made, there is nothing negative on the
DAC records that would preclude her from obtaining future
employment with another motor carrier.
Mr. Wilmot's 4/3/95 letter confirms what Digby in essence
agreed 1/6/95, and what Ms. Bell then requested. There was no
agreement as to a $250 payment and it is not included as the
basis of this recommended Order.
Mr. Wilmot's 4/3/95 written statements as to how Digby is
handling, and inferentially how Digby will continue to handle,
prospective employers' inquiries on complainant, with the 1/9/95
Agreement of the parties, is the agreement of the parties.
Complainant 4/7/95 specifically advises this Office it is her
intention to drop this entire matter. This is also viewed as the
thrust of her statements since Digby's Safety Director's 4/3/95
written statement.
The agreement is:
Digby agrees to amend the DAC Services Work History of
Cynthia A. Bell to exclude any negative statement that
might be construed as a 'blackmark; ' on inquiries from
prospective employers Digby will only verify dates
complainant worked for Digby, her position with them; did
not and will not release any information regarding
accidents or make any subjective comments about Ms. Bell on
these inquiries, and with the Digby DAC changes made there
is nothing negative on the DAC records from Digby which
would preclude her from obtaining future employment with
another motor carrier. Digby hopes this settlement allows
Ms. Bell to move on with her life.
[PAGE 3]
Complainant, Ms. Bell agrees to drop this matter against
Digby Southwest, Inc.
Accordingly, because, based on the 1/9/95 Agreement,
Digby's 4/3/95 letter, it is appropriate to recommend approval of
the settlement the parties reflect in these writings, as fair and
equitable under 29 CFR 1978.11(d)(2); and because complainant
4/7/95 states her intention to drop this entire matter, the case
is recommended for approval and dismissal.
SO ORDERED.
ELLIN M. O'SHEA
Administrative Law Judge
NOTICE: This Recommended Decision and Order and the
administrative file in this matter will be forwarded for review
by the Secretary of Labor to the Office of Administrative
Appeals, U.S. Department of Labor, Room S4309, Frances Perkins
Building, 200 Constitution Ave., NW, Washington, DC 20210. The
Office of Administrative Appeals has the responsibility to advise
and assist the Secretary in the preparation and issuance of final
decisions in employee protection cases adjudicated under the
regulations at 29 C.F.R. Parts 24 and 1978. See 55 Fed. Reg.
13250 (1990).
[ENDNOTES]
[1] See the attached incorporated "Procedural History - ALJ
Exhibits." This is a listing and description of all documents
received at this Office since 11/22/94 referral, most handwritten
by Ms. Bell. Those marked, as identified, 1. through 17. were
received prior to the 1/6/95 conference call.
Those marked and identified A-G, or #A-#G were received by
this Office after 1/6/95 conference call and prior to the ALJ's
2/10/95 Letter Order/Notice to Parties. They were served with
the 2/10/95 Order, and are described, identified and referred to
in this Letter Order.
Post 3/10/95 submissions marked 18 through 30 and are also
identified and described on the Procedural History listing. #17
is served on complainant and Digby with their copy of this Order.
