DATE: December 8, 1994
CASE NO: 94-STA-0051
In the matter of
MICHAEL R. GUY
Complainant
v.
THE KROGER COMPANY
Respondent
Appearances:
Michael R. Guy, Esq.
For the Complainant
M. Scott McDonald, Esq.
For the Respondent
Before: PAUL H. TEITLER
Administrative Law Judge
RECOMMENDED DECISION AND ORDER
APPROVING SETTLEMENT
In these claims for compensation under the Surface
Transportation Act (STAA), based upon a complaint of discrimination
in violation of Section 405 of the STAA the parties have agreed to
a settlement. A detailed settlement agreement signed by the
Claimant and all counsel (designated as Joint Exhibit 1) has been
presented to the undersigned and the parties have requested that the
settlement agreement be approved, as follows:
RELEASE AND TRANSFER AGREEMENTARTICLE 1
PREAMBLE
This Release and Transfer Agreement ("Agreement") is entered
into between Michael R. Guy (hereinafter "Guy") and The Kroger
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Company (hereinafter "Kroger") and includes any parent, subsidiary
or affiliate corporation thereof.
ARTICLE 2PURPOSE
It is the purpose of this Agreement to provide Guy the
opportunity to transfer to a driver's job and to resolve any and all
of Guy's claims or potential claims against Kroger which could arise
out of facts or circumstances occurring on or before the execution
of this Agreement; including, but not limited to, all safety
complaints or related activities by Guy and the action taken
concerning such complaints by Kroger, and the claims for relief
sought by Guy in a civil action now pending before the United States
Department of Labor in Case No. 94-STA-0051, Michael R. Guy v.
The Kroger Co.ARTICLE 3STIPULATIONS
Guy and Kroger stipulate to certain facts which relate to
claims and controversies existing between the parties to this
Agreement as follows:
Section 3.1: Guy is an employee of Kroger who initiated
Case No. 94-STA-0051 which is pending before the United States
Department of Labor against Kroger. All Claims asserted in Case No.
94-STA-0051 were and are denied by Kroger in their entirety. The
parties stipulate that the entry of this Agreement does not
constitute for any purpose, either directly or indirectly, an
admission of liability by Kroger, its officers, agents, or
employees, nor shall this Agreement be admissible in any judicial,
administrative or other proceeding or cause of action as an
admission of liability by its officers, agents, or employees.
Section 3.2: The parties stipulate that Kroger has
taken reasonable and appropriate remedial action with regard to
Guy's safety complaints. The parties stipulate that Kroger has not
engaged in any wrongdoing with regard to Guy's employment.
Section 3.3: Guy understands and stipulates that his
transfer to a driver position is a voluntary action taken by Kroger
to help him restore good employment relations with Kroger. The
purpose of this transfer is not to reward or condone past behavior.
ARTICLE 4[PAGE 3]
CONSIDERATIONSection 4.1: The total consideration afforded by Guy
consists of the full performance of each and every obligation
imposed upon him by this Agreement.
Section 4.2: The total consideration afforded by Kroger
is its agreement to provide Guy the Opportunity to transfer to a
driver's job; conditioned as follows:
(1) Guy must meet the following requirements prior to becoming
a driver:
(a) Guy must comply with all licensing requirements,
including taking and passing the appropriate state
and/or federal driving tests with a trailer. If Guy
does not pass the appropriate driver's tests on the
first attempt, he may take the tests a second time
within ninety (90) days.
(b) Guy must comply with any preliminary job assignments
given to him for training, including a possible
requirement that Guy ride with (as a driver or
observer) another driver for as long as Kroger
determines, in its sole discretion, that such an
assignment is appropriate. Further, Guy will
complete any additional training requested and
provided by Kroger at its discretion.
(c) Guy must comply with and pass all physical
examinations, drug tests, and other testing required
under state or federal law, including Department of
Transportation regulations.
(d) Guy must have an acceptable driving record within
company, state and federal requirements.
Until such time as Guy meets the foregoing requirements,
he will remain a fueler. The effective date of his
transfer will be the date he completes the foregoing
requirements. Kroger will be under no further obligation
to make Guy a driver if he cannot comply with the
requirements in paragraphs (a), (c) and (d) above within
one-hundred twenty (120) days from the date of this
Agreement.
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(2) Upon becoming a driver, Guy will be required to comply
with the same standards, policies, and rules of conduct
as other drivers, and will cooperate in any training
requested and provided for by Kroger at its discretion.
Guy will cooperate with other drivers and will not
disrupt or criticize the work of other drivers.
(3) Guy's driver seniority date will be the effective date of
his transfer for all purposes except hourly rate of pay.
Guy's hourly rate of pay will be based upon his existing
seniority date. Guy will not carry over seniority from
his present classification into his new driver's position
for purposes of bidding on runs or vacation dates.
(4) Except as otherwise provided for in this Agreement, the
employment relationship between Guy and Kroger will be
controlled by and subject to the collective bargaining
agreement applicable to the position Guy holds at the
time. If no collective bargaining agreement applies, Guy
will be an at-will employee under Texas common law.
Kroger retains all rights and discretion afforded to it
under the applicable collective bargaining agreement or,
if applicable, employment-at-will law of Texas concerning
the continuation of Guy's employment and terms and
conditions of Guy's employment. Nothing in this
Agreement shall be construed as a guarantee of employment
for specific period of time.
(5) The transfer of Guy to a driver's position under the
foregoing terms may not be construed or relied upon by
anyone as precedent for any future employment decisions,
and it is agreed that this transfer involves special
circumstances which are not intended to apply to any
other employee or situation.
ARTICLE 5AGREEMENT, RELEASE AND DISMISSAL OF
PENDING ACTIONSection 5.1: For and in consideration of the required
acts and promises set forth in this Agreement, Guy hereby releases
Kroger, as well as any parent, subsidiary, affiliate, agent, and
officer of Kroger, from any and all claims which Guy has asserted
or might assert against Kroger, or any parent corporation,
subsidiary corporation, affiliate corporation, agent, or officer of
Kroger, arising from facts or circumstances occurring on or before
the execution of this Agreement.
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Section 5.2: Upon the execution of this Agreement, Guy
agrees to dismiss with prejudice the action pending before the
Department of Labor (Case No. 94-STA-0051). The parties agree to
bear their own costs, expenses and attorneys' fees incurred in
connection with such action.
Section 5.3: Guy hereby represents and warrants that
he has not assigned or otherwise transferred to any other person or
entity any interest in any claim, demand, action and/or cause of
action he has or may have against Kroger and/or the persons or
entities released herein; and, Guy agrees to indemnify and hold
Kroger harmless from any losses or costs of defense related to
claims which may hereafter be asserted against any Kroger by virtue
of any assignment by Guy.
Section 5.4: The parties agree that the terms and
language of this Agreement are the product of negotiations between
the parties hereto and the parties stipulate that the consideration
afforded to them that is described in this Agreement is the full and
final consideration agreed to between the parties, and that they
have received no other promise, inducement or concession in support
of the obligations imposed upon them under this Agreement.
Section 5.5: By entering into this Agreement, Guy and
Kroger agree that they have resolved and settled any and all claims
by Guy against Kroger up to the date of this Agreement and that
neither this Agreement, nor any action taken by Kroger concerning
or related to Guy's employment with Kroger prior to this Agreement,
shall be used as evidence of or grounds for a claim of
discrimination or retaliation by Guy henceforth.
ARTICLE 6CONFIDENTIALITY & PUBLIC STATEMENTSSection 6.1: Except as otherwise provided herein, Guy
will not communicate the terms or contents of this Agreement to any
third person or entity, without express written authorization from
Kroger, unless compelled by law. Guy may state that "the case was
dismissed with no finding of liability against Kroger" if asked
about it by a third party. Guy is to make no other statements
concerning the merits of his claim.
Section 6.2: Guy will make no disparaging or derogatory
remarks concerning Kroger or its management. Guy agrees to sign
Exhibit A which contains a statement of reconciliation with Kroger,
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and agrees that Kroger may, at its discretion, post this statement.
Guy agrees to sign Exhibit B as a personal commitment in principle
to Kroger management.
Section 6.3: In the event Guy violates Section 6.1
above, Defendant shall be entitled to injunctive relief, recovery
of $500 per event of violation, and attorneys' fees incurred. Each
such remedy is to be construed as fully independent and
nonexclusive, separate and apart from any other remedy allowed by
law.
ARTICLE 7ENFORCEMENT OF COVENANTSSection 7.1: The parties agree that a violation on
their part of any covenants contained in this Agreement will cause
irreparable damage, and that the injured party shall be entitled as
a matter of right to obtain an injunction or decree of specific
performance from any court of competent jurisdiction restraining any
such violation, and directing performance according to the terms of
this Agreement. Such remedies shall be cumulative and nonexclusive
of any other remedies the parties may have, including, but not
limited to, the discharge of Guy from employment or the recovery of
damages by either party.
ARTICLE 8MISCELLANEOUSSection 8.1: This agreement contains the entire
agreement between the parties. No modifications or amendments to
any of the terms, conditions or provisions herein may be made or
enforced unless evidenced by a written addendum executed by Guy and
Kroger.
Section 8.2: The laws of the State of Texas shall
govern the validity, construction and enforcement of this Agreement.
The agreed venue shall be Dallas County, Texas.
Section 8.3: If any provision of this Agreement is held
to be illegal, invalid or unenforceable under present or future
laws, such provision(s) shall be fully severable. This Agreement
shall be construed and enforced as if such illegal, invalid or
unenforceable provision(s) had never comprised a part hereof. In
such cases, the remaining provisions of this Agreement shall
continue in full force and effect and shall not be affected by any
illegal, invalid or unenforceable provision(s), or by its severance.
Section 8.4: The waiver by any party hereto of a breach
of any
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provision of this Agreement shall not operate or be construed as a
waiver of any subsequent breach by any party, nor shall any waiver
operate or be construed as a rescission of this Agreement.
IN WITNESS WHEREOF, this Agreement was signed and executed on
December 1, 1994.
I have carefully considered the facts involved in this case and
the difficult legal and factual questions in dispute, as well as the
criteria set forth in Section 405(STAA) and 49 U.S.C. 2305,
etseq. and, upon careful evaluation of same, I
conclude that the settlement is fair and in the best interest of the
Complainant. Moreover, I find that the Settlement was arrived at
without duress, and only after full exploration by the parties of
all issues in dispute and the difficult legal and factual questions
involved. Pursuant to 49 U.S.C. 2305(2)(A), I find that the
settlement is fair, reasonable and adequate.
ORDERIT IS ORDERED THAT the settlement be, and hereby is
APPROVED.
PAUL H. TEITLER
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 S-4309, 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).
