Frank Rodriguez v. Lehigh Southwest Cement Company (ALJ decision, May 29, 2015)

Plain-English summary

Frank Rodriguez brought a Mine Act discrimination complaint against Lehigh Southwest Cement Company. After several continuances and two hearing sessions, the parties reached a confidential settlement and asked the Judge to review it without public disclosure. Judge Alan G. Paez placed the agreement under seal, found its terms consistent with the Mine Act, and retained jurisdiction until the parties completed their obligations. Counsel for both sides later confirmed that the agreement had been satisfied. The Judge granted final approval and dismissed the case with prejudice.

Decision snapshot

• Governing provision: 30 U.S.C. § 815(c)(3)
• Outcome: The confidential settlement was finally approved after performance, and the discrimination proceeding was dismissed with prejudice.
• Key point: The public decision confirms approval and completion of the settlement without disclosing the sealed terms.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

May 29, 2015

FRANK RODRIGUEZ,

Complainant,

v.

LEHIGH SOUTHWEST CEMENT

COMPANY,

Respondent

CIVIL PENALTY PROCEEDING

Docket No. WEST 2013-301-DM

WE MD 13-05

Mine ID 04-04075

Lehigh Permanente Cement

FINAL DECISION APPROVING SETTLEMENT

ORDER OF DISMISSAL

This case is before me pursuant to
section 105(c) of the Federal Mine Safety and Health Act of 1977 (“Mine Act”), 30 U.S.C. § 815(c). Complainant Frank Rodriguez (“Complainant” or “Rodriguez”), filed a discrimination complaint against Lehigh Southwest Cement Company (“Respondent” or “Lehigh”) under section 105(c)(3) of the Mine Act, 30 U.S.C.
§ 815(c)(3). Chief Administrative Law Judge Robert J. Lesnick assigned this case to me, and I set the matter for hearing several times, including: October 22–23, 2013, February 25–26, 2014, and July 17–18, 2014. However, each time the hearing was continued because of the complicated procedural circumstances of this case and Complainant’s efforts to obtain representation. On January 13–14, 2015, I received testimony and evidence at a hearing in San Jose, California. Translation of Complainant’s testimony was time-consuming, and neither party completed its case-in-chief in the allotted two days. The litigants’ schedules precluded a supplemental hearing on January 15, 2015, and after discussing next steps in this case and the parties’ availability, I held a supplementary hearing in San Jose, California on April 14–15, 2015, to complete the hearing and take evidence on damages, if any.

During the hearing on April 15, the
parties informed me that they wished an opportunity to complete a settlement agreement. (Tr. 648:2–7.) After the agreement was reduced to writing and signed by the parties, the parties submitted a settlement agreement entitled Confidential Settlement Agreement and General Release (“Confidential Settlement Agreement”) to me for my review. (Tr. 648:7–649:7.) In addition, the parties asked that the terms and conditions of the agreement remain strictly confidential. (Tr. 649:4–8.) In light of the parties’ request, I agreed to review the settlement agreement in camera and I issued an order from the bench placing the Confidential Settlement Agreement under seal in the official file.[1] (Tr. 649:8–10.)

Next, I issued an interim decision
approving settlement from the bench. Having reviewed the parties’ settlement agreement, I approved its terms as they relate to Complainant’s claim under section 105(c)(3) of the Mine Act, and I found the agreement to be consistent with section 105(c) and the purposes of the Mine Act. See 30 C.F.R.
§§ 815(c), 820(i). In addition to ordering the parties to comply with terms of the settlement agreement, I retained jurisdiction in the matter until the obligations outlined in the agreement had been satisfied. (Tr. 649:11–20.) Finally, I ordered counsel for the parties to report to my Law Clerk, Paul Veneziano, when all obligations had been satisfied. (Tr. 649:21–25.)

On May 13, 2015, counsel for
Rodriguez informed Mr. Veneziano that the terms of the settlement agreement had been satisfied. On May 27, 2015, counsel for Lehigh confirmed that all obligations had been satisfied. Accordingly, final approval of the parties’ settlement is hereby GRANTED.

WHEREFORE, the terms of the
Confidential Settlement Agreement have been satisfied, this proceeding is hereby DISMISSED with prejudice.

/s/ Alan G. Paez

Alan G. Paez

Administrative Law Judge

Distribution: (Via
Electronic Mail & U.S. Certified Mail – Return Receipt Requested)

Robert David Baker, Esq., Robert David Baker, Inc., 80 South White Road, San Jose, CA 95127

([email protected])

Frank Rodriguez, 2487 Alum Rock Avenue, Apartment 30, San Jose, CA 95116

([email protected])

Dinah L. Choi, Esq., and Kelly S. Riggs, Esq., Ogletree, Deakins, Nash, Smoak & Stewart, P.C., 222 SW Columbia Street, Suite 1500, Portland, OR 97201

([email protected])

([email protected])

/pjv

[1]
In a separate Order dated today, I also reduced to writing my April 15, 2015, bench order placing the Confidential Settlement Agreement under seal in the official file.