.........................................
IN THE MATTER OF: :
: DATE: OCTOBER 20, 1992
TERRY W. TANKERSLY, :
Complainant :
v. : CASE NO. 92-STA-0008
:
TRIPLE CROWN SERVICES, INC., and :
NORTH AMERICAN VAN LINES, INC., :
Respondents :
........................................:
DAVID M. HEIMOS, Esquire
Counsel for Complainant (Formerly)
ELLIOTT R. LEWIS, Esquire
MARK D. PERRAULT, Esquire
Counsel for Respondents
Before: JULIUS A. JOHNSON
Administrative Law Judge
DECISION AND ORDER APPROVING PROPOSED ADJUDICATORY SETTLEMENT
AND DISMISSING COMPLAINT
This matter arises under the Surface Transportation
Assistance Act of 1982 (the "Act"), 49 U.S.C. § 2305, which
provides for employee protection from discrimination for engaging
in protected activity pertaining to commercial motor vehicle
safety and health matters. Apart from the Act, procedures are
set forth in the regulations, 29 C.F.R. § 1978, for the
expeditious handling of "whistleblower" complaints.
Although there is no formal or written complaint docketed
here, it appears that a complaint was previously filed with the
Regional Administrator, Occupational Safety and Health
Administration, U.S. Department of Labor (DOL).1 Referral to
______________
1 See ALJ Appendix I (attached), Letter of November 21, 1991 of
the Regional Administrator dismissing a complaint, submitted as
part (Tab A) of Respondents' Memorandum of Law with Supporting
Affidavit and Discovery Material, supporting their Motion for
Summary Decision (ALJ Exhibit 1) filed July 15, 1992. This case,
docketed here December 4, 1991, contained a file with no
complaint and little more than letters of appearance of the
[PAGE 2]
parties' counsel. See ALJ Exhibit 2 (Docket filings 12/24/91-
10/9/92). Respondents state in their Memorandum that they
received no complaint in this matter arising from detailed
investigations by the DOL and the U.S. Department of
Transportation finding no merit in any complaint. (Respondents'
requested hearing on the Motion for Summary Decision would have
been incorporated in the formal hearing schedule.)
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the Office of Administrative Law Judges for hearing proceeds from
a termination of complainant's contractor operating agreement,
which complainant alleges was based on his refusal to violate
several U.S. Department of Transportation safety regulations,
including falsifying his driving log. Respondents allege his
discharge was based on his service deficiencies, among other
things, as a probationary independent contractor driving his
tractor to move trailers between shippers and receivers in
interstate commerce centered around St. Louis, Missouri. It is
not clear what would constitute complainant a "whistleblower" or
his acts "protected activity" to support the claim of
retaliatory discharge, but events preceding a planned
hearing are undisputed.
Background
Since referral of this matter to this office, it has twice
been scheduled for a hearing, on July 9 and August 18, 1992. It
was presently under consideration for re-scheduling in January
1993, as the parties were recently advised. It had been the hope
that this matter would be resolved by a determination on the
merits of a complaint. However, further consideration of the
nature of the case and the events that have transpired since the
last scheduling of a hearing mandate quite another disposition.
Motion of Complainant's Counsel to Withdraw
Respondents' Motion for Approval of Adjudicatory Settlement
The last scheduled hearing for August 18, 1992 was canceled
in the second of two telephone conferences with the parties
initiated by the undersigned judge on August 12 and 13, 1992. A
short time prior to those conferences, the parties had reported
settlement of this matter. In the first telephone conference, it
was confirmed that complainant, who participated along with his
attorney David M. Heimos and all defense counsel, rejected any
settlement. Complainant's counsel requested withdrawal;
respondents requested approval of the settlement agreement,
complainant requested continuance of the hearing for 90 days to
[PAGE 3]
allow time to obtain other counsel. While complainant's counsel
was allowed to withdraw and complainant was allowed the
additional time, consideration of respondents' motion for
approval of the settlement agreement was deferred and it now
precludes further action of the parties in anticipation of any
hearing.
Findings of Fact and Conclusions of Law
The initial Pre-hearing Order of March 13, 1992 provided
that the parties, along with their preparation for the hearing,
should discuss the possibility of settlement.
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Respondents' motion for approval of adjudicatory
settlement, filed August 13, 1992, seeks reinstatement of a
negotiated agreement under 29 C.F.R. § 1978.111(d)(2), which
provides, in part, that:
At any time after the filing of objections . . . the
case may be settled if the participating parties
agree to settlement and such settlement is approved
by the Secretary of Labor or the ALJ [Administrative
Law Judge]. A copy of the agreement shall be filed
with the ALJ . . . .
Although the agreement here had not yet been reduced to
writing, respondents' motion, designated ALJ Appendix II and made
a part hereof as a copy of the agreement, states that:
[T]he parties agreed to a settlement with prejudice
on July 31, 1992. Respondents agreed to pay
Complainant . . . and his attorney, David M. Heimos,
a total of $10,000 in compensation, damages and
attorneys' fees, and in addition, to release
Complainant from any claims Respondents may have
against him in connection with repossession of his
tractor in exchange for Complainant's release of any
and all claims he has or may have against Respondents
arising out of his business relationship with them.
According to representations made during the telephone
conferences and the statements of Mr. Heimos and defense counsel
Elliott R. Lewis, attached as Appendices A and B respectively to
respondents' motion, the terms of the agreement were negotiated
[PAGE 4]
by counsel through much earnest effort. Further, according to
those representations and the signed statement of complainant
himself, complainant had given explicit authority to his attorney
to "settle the claim for what you can get." (See ALJ Appendix
II, complainant's signed statement of August 7, 1992) The
negotiation was consummated by agreement of the parties on July
31, 1992 and reported to the undersigned judge on August 4, 1992
as a settlement of the case. However, by August 6, 1992,
complainant apparently had a change of mind and as related in the
first telephone conference of August 12 felt he was entitled to
more than $10,000.
In conclusion of the first telephone conference the parties
agreed to discuss the matter further. In the second telephone
conference the next day, August 13, the parties reported that
their discussion had advanced to the point of some change in the
settlement amount, but complainant had rejected it. The second
offer, renewed just for the duration of the last telephone
conference, remained unaccepted.
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The motion of Mr. Heimos to withdraw as complainant's
counsel, dated August 10, 1992, cited the fact of complainant's
authorization for settlement, complainant's prior acceptance and
then rejection of the agreed settlement, and the dispute that had
arisen between counsel and client. In the second telephone
conference of August 13, 1992, the motion to withdraw as counsel
was therefore granted, and in view of this development
complainant's request for a continuance of the hearing for 90
days to obtain other counsel was also granted. Respondents urged
in the conference and by motion submitted the same day that this
judge should approve the prior agreement of the parties as an
adjudicatory settlement, "final, conclusive and binding."
Respondents' motion for approval of adjudicatory settlement
should be granted.
Respondents' motion for approval of the July 31, 1992
settlement with prejudice and a mutual release of liability
includes as Appendix A the motion of Mr. Heimos to withdraw with
a signed statement of complainant on August 7, 1992 verifying
that he authorized counsel to "settle the claim for what you can
get"; and as Appendix B it includes the affidavit of Elliot R.
Lewis, counsel for North American Van Lines, Inc., relating
details of negotiations culminating in the agreement reported to
the undersigned judge on August 4, 1992 and relating
[PAGE 5]
complainant's reported change of mind two days after acceptance
of the offer.
In the telephone conferences with all the parties on August
12 and 13, 1992, complainant did not dispute representations
regarding his attorney's settlement authority or his own initial
acceptance of the negotiated settlement. He simply desired a
greater settlement amount.
It is determined that complainant has been represented by
able and competent counsel who exercised sound judgment in
prosecuting the interests of his client not only with respect to
the extensive discovery and filed pre-hearing matters leading to
a hearing on the merits,2 but in following the requirement to
discuss the possibility of settlement, as the progress of
preparation and reassessment of relative case merits would
naturally inspire. Most important, complainant's counsel
followed complainant's own wishes in obtaining what he could in
negotiated settlement.
It is apparent from the conferences with the parties that
complainant was satisfied with the services of counsel, as he
stated, and did not request, nor apparently desire, his
withdrawal.
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2 See ALJ Appendix I.
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Moreover, the circumstances here do not show that
complainant was subjected to any illegality, fraud, duress, undue
influence or mistake in agreeing to settle his complaint. It
appeared from discussion in telephone conference that the parties
negotiated at arms' length, with there being offer, acceptance,
and consideration - a binding agreement, albeit not then - or
later - reduced to writing. Nothing appears to even suggest that
these competent parties did anything more than make a fair and
reasonable accommodation of each other's position.
Furthermore, examination of matters filed here, including
respondents' motion for summary decision and complainant's
responses, while now needless to rule upon, reveals that
respondents' position in this matter is not without much merit.3
It would understandably be in a party's best interest to be
realistic about the likelihood of success on a "complaint"
alleging retaliatory discharge as a "whistleblower" for presumed
"protected activity" when there may be no supporting evidence.4
[PAGE 6]
Finally, there is no overriding public policy or unusual
circumstance that should preclude approval of this agreement
between these parties. The agreement reached was a valid,
private compromise of their respective interests and, as much as
amicable settlement is encouraged, once achieved it should be
respected. To do otherwise here would permit an abuse of the
conscientious endeavors of parties and their counsel and would
make a mockery of the legal process, especially where there
hardly appears to have been any justification for litigation
before an administrative law judge in the first place.
Accordingly, the respondents' motion for adjudicatory
settlement is granted.
______________
3 See Respondents' Memorandum of Law (ALJ Exhibit 1) which
includes in supporting appendices complainant's own deposition
testimony and records, among other things; the affidavit of
respondent North American Van Lines (NAVL) sales manager
regarding complainant's assessment of service failures; the
affidavit of NAVL safety administration director regarding
rejection of drivers for falsifying information; and the
affidavit of NAVL medical director regarding complainant's
omission of medical data.
4 Apart from the important threshold question of whether
complainant was an "employee," if this trucker's discharge
preceded any complaint to a government agency, as the regional
administrator's findings show (ALJ Appendix I), there naturally
could not have been any "retaliation," regardless of whatever
"protected activity" might have been later envisioned or devised.
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Order
It is hereby
ORDERED that the motion of attorney David M. Heimos to
withdraw as complainant's counsel is granted, as of August 13,
1992, and he shall have an attorney's lien on any compensation
complainant shall receive for services rendered to him to, and
including, that date. It is
FURTHER ORDERED that the settlement agreement of the
[PAGE 7]
parties, negotiated on July 31, 1992, and as stated here, is
approved and shall be implemented in accordance with its terms:
I. Respondents shall pay to complainant, Terry W.
Tankersly, and his former attorney, David M. Heimos, a total of
$10,000 as full compensation in this matter.
II. Complainant is released from any claims respondents
may have against him in connection with repossession of his
tractor in exchange for complainant's release of any and all
claims complainant may have against respondents arising out of
his business relationship with them.
III. The complaint in this matter is dismissed with
prejudice.
_________________________________
JULIUS A. JOHNSON
Administrative Law Judge
Notice of Review: Although this is an approval of an
adjudicatory settlement under 29 C.F.R. § 1978.111(d)(2), it
is deemed that the findings, conclusions and order required here
render this determination, in actuality, a decision and order
under 29 C.F.R. § 1978.109(a), which provides a basis for
exception by the parties and review by the Secretary of Labor.
Accordingly, this Decision and Order, together with the record,
is forwarded to the Secretary and is served upon all parties to
the proceeding. The parties may file with the Secretary a
statement or brief in support of or in opposition to the Decision
and Order within 30 days of the issuance date.
The Secretary will have 120 days for any review of the
record and issuance of a final decision and order (29 C.F.R.
§ 1978.109(c)). If the parties' submissions are in
agreement with this Decision and Order, review may be
deemed unnecessary and the parties may request of the Secretary
or her designee allowance of an expeditious implementation of the
settlement.
