ARB CASE NOS. 99-041, 99-042, and 00-012
ALJ CASE NO. 89-ERA-22
DATE: May 17, 2000
In the Matter of:
SHANNON T. DOYLE,
COMPLAINANT,
v.
HYDRO NUCLEAR SERVICES,
RESPONDENT.
BEFORE: THE ADMINISTRATIVE REVIEW BOARD
Appearances:
For the Complainant: Stephen M. Kohn, Esq.,
Kohn, Kohn & Colapinto, P.C., Washington, D.C.
For the Respondent:
Hope A. Comisky, Esq., Pepper Hamilton LLP, Philadelphia, Pennsylvania Robert E. Frankel, Esq., Anderson Kill & Olick, P.C., Philadelphia, Pennsylvania
FINAL DECISION AND ORDER ON DAMAGES AND DENIAL OF STAY PENDING JUDICIAL REVIEW
1 The 1992 amendments to the ERA
do not apply to this case because the complaint was filed prior to 1992.
2 We assigned ARB No. 99-
041 to Hydro's petition and ARB No. 99-042 to Doyle's petition.
3 In an earlier order, we had
awarded Doyle the payment of costs and attorney fees expended through that date. See page 23,
infra.
4 We assigned ARB No. 00-12
to Doyle's petition for review of the 1999 Fee Order.
5 Reference is to the exhibits
introduced at the December 1994 hearing; "T." refers to the transcript of that hearing.
6 Although the Secretary would
not have enforced such a waiver, 1994 Sec'y D&O at 4, merely asking Doyle to sign it was a
violation of the ERA's whistleblower provision. See Connecticut Light & Power Co. v. Sec'y
of Labor, 85 F.3d 89 (2d Cir. 1996) (employer's proffer of a settlement that would have
restricted employee's access to judicial and administrative agencies violated the ERA).
Accord Pace v. Kirshenbaum Investments, No. 92-CAA-8, Sec'y Final Order Approving
Settlement Agreement, Dec. 2, 1992, slip op. at 1 (waiver of a person's ERA protected rights
based on future employer action was contrary to public policy and would not be enforced).
7 The 1998 Stipulation is
attached to the FRD&O issued February 12, 1999.
8 By striking the portions of the
motion that concern tax enhancement, the ALJ removed from the record the argument and
attached exhibit that pertained to tax enhancement. Approving this action would establish a
procedure that, if abused, could shield erroneous ALJ rulings from review. See Sidney-
Vinstein v. A.H. Robins Co., 697 F.2d 880, 885 (9th Cir. 1983) (reversing district court's
grant of motion to strike a motion). Accordingly, we reverse the ALJ's grant of the motion to
strike and accept into the record the complete motion for summary judgment.
9 Concerning the interest
calculation, the ALJ ordered: "The parties shall recalculate interest awards in conformity
with these instructions and submit them to the court." 1998 Part. Ord. at 19.
10 Doyle submitted a
Motion to Strike Respondent's Motion for Stay, which we deny. Hydro submitted a Motion for
Leave to File Reply Brief In Support of Motion for Stay (without an accompanying reply), which
we deny as moot in light of our decision on the merits of the stay request.
11 After the tax records
Doyle provided were examined, they were placed in a sealed portion of the record.
12 The parties have not
agreed to any enhancement of the compensatory damages award. Their stipulation merely recites
our earlier compensatory damages award: "Based upon the ARB's September 6, 1996
Final Decision and Order, compensatory damages amount to $40,000." 1999 Stip.
¶6.
13 In Leveille,
we also noted that Administrative Law Judges may appropriately consider the level of
compensatory damages awarded in employment discrimination cases brought outside the Labor
Department's administrative law system.
14 We reject Doyle's
claim of entitlement to additional damages because of Hydro's failure to comply with the earlier-
ordered remedies. A party need not comply with decisions that are not administratively final, and
this is the administratively final decision in Doyle's case.
15 That award covered
work in this case through December 11, 1995. See 1999 Fee Order at n.1.
16 The ALJ and Hydro
referred to the $630 as both "attorneys' fees and costs" associated with Henderson's
testimony, but did not specify which portion of that amount represents attorney fees. 1996 Fee
Order at 8. Consequently, we treat the full amount as a cost, which is not subject to increase
because of the delay in payment.
17 Although we had
issued a briefing order concerning the 1995 RD&O (damages award), we did not separately order
briefing on the 1996 Fee Order. Rather, we issued the 1996 D&O without the benefit of briefs
addressing the ALJ's findings on attorney fees and costs.
18 These analogous
employee protection provisions include: the Clean Air Act, 42 U.S.C. §7622; the
Comprehensive Environmental Response, Compensation and Liability Act of 1980, 42 U.S.C.
§9610; the Federal Water Pollution Control Act, 33 U.S.C. §1367; the Safe
Drinking Water Act, 42 U.S.C. §300j-9(i); the Solid Waste Disposal Act, 42 U.S.C.
§6971; the Surface Transportation Assistance Act of 1982, 49 U.S.C. §31105; and
the Toxic Substances Control Act, 15 U.S.C. §2622 (all 1994).
19 We do not rely upon
the parties' stipulation concerning the amount of prejudgment interest because the ALJ ordered
them to use simple interest. Thus, in ordering the payment of compound interest, we are
overturning the ALJ's recommendation, rather than a stipulation reached freely by the parties.
20 The parties already
have determined the back pay principal owed for each of the quarters at issue, according to the
ALJ's 1998 Partial Order.
21 The ALJ stated the
postjudgment interest rate as follows:
(5) Interest on front pay and back pay shall continue to accrue at
the rate set forth in 26 U.S.C. §6621(b)(3) until the back pay
and fro[nt] pay is paid by the Respondent[.]
22 The two petitions for
review of the Sept.1996 D&O were consolidated in the Third Circuit, which remanded the case
to the Secretary of Labor because the decision was not administratively final.
23 We note that even if
we were to overrule the ALJ and to hold that Doyle's costs reasonably were incurred, we would
award only those costs that he documented, such as his meals, or that reasonably could be
ascertained, such as the travel costs between his home and Washington. We would not award the
cost of Doyle's lodging because he did not produce any receipt or other evidence documenting
the expense. See Gaballa v. The Atlantic Group, Case No. 94-ERA-9, Sec'y Interim
Order, Dec. 7, 1995, at 4 (disallowing unsubstantiated costs).
24 We would not expect
Hydro to be privy to any information with which to rebut the claimed costs for several meals
($50) and lodging ($60). Nor could Hydro produce evidence to rebut the loss of receipts,
although the company did question Doyle's veracity concerning the loss. Hydro Br. in Opp. to
Appeal of Attorney's Fees at n. 3.
25 Board Member E.
Cooper Brown did not participate in the consideration of this case.