The ALJ concluded that Bigham was fired for refusing to haul the overweight
load,
and we agree. Irwin testified that normally an employee is laid off only after several days have
passed
during which he or she has not been needed due to a lack of work. Bigham was laid off the first
day
he was told not to report to work. R. D. and O. at 8-9. Guaranteed may have suffered a drop in
revenues in December 1994, necessitating a reduction in its work force, but Bigham's layoff was
done
in an unusual manner before there was a drop-off in work. We therefore adopt the determination
of
the ALJ that Guaranteed violated the employee protection provision of the STAA.
In assessing Bigham's request for compensatory damages, the ALJ
concluded that although
Bigham experienced emotional distress and mental anguish as a result of his termination, his
request
for $48,000 in compensatory damages was "ludicrous." R. D. and O. at 13-14. The
ALJ
also indicated that of the cases cited by the prosecuting party to support this request, only one is a
whistleblower case. R. D. and O. at 14. We find it necessary to note that courts have awarded
compensatory damages for emotional distress caused by wrongful discharge in amounts greater
than
the amount requested by the prosecuting party. See, e.g., Muldrew v. Anheuser-Busch,
Inc.,
728 F.2d 989, 992 and n.1 (8th Cir. 1984) (holding "reasonable" an award of $50,000
for emotional distress and mental suffering based on evidence that "as a result of his
discharge
[Page 3]
[plaintiff] lost his car and house, he and his wife began experiencing marital problems, and he
felt
that
his children respected him less"); Wulf v. City of Wichita, 883 F.2d 842, 875 (10th
Cir.
1989) (award should have been no greater than $50,000 where plaintiff testified "that his
job
loss was 'very stressful' [and] that he was angry, depressed, scared and frustrated" and his
wife
testified "that he was under 'tremendous emotional strain' and that they experienced
significant
financial difficulties"); Ruhlman v. Hankinson, 461 F. Supp. 145, 151 (W.D. Pa.
1978), aff'd, 605 F.2d 1195, 1197 (3d Cir. 1979), cert. denied, 445 U.S. 911
(1980)
(evidence of emotional distress amounting to more than "some pressure and
embarrassment" sufficient to sustain award of $50,000).
We find it appropriate to review other types of wrongful termination
cases to assist in the
analysis of the appropriate measure of compensatory damages in whistleblower cases. In
assessing
Bigham's request, we have reviewed the relevant evidence and considered the facts in light of
awards
in the aforementioned cases as well as other whistleblower decisions involving emotional
distress.
See, e.g., Blackburn v. Metric Constructors, Inc., 86-ERA-4, Sec. Dec. and Ord., August
16, 1993; Lederhaus v. Paschen, Case No. 91-ERA-13, Sec. Dec. and Ord., Oct. 26,
1992,
slip op. at 10-14, and cases cited therein; McCuistion v. TVA, Case No. 89-ERA-6, Sec.
Dec.
and Ord., Nov. 13, 1991, slip op. at 18-22, and cases cited therein. After reviewing the
observations
and accounts of Bigham's emotional distress, we increase the ALJ's recommended amount and
award
Bigham $20,000 in compensatory damages.
ORDER
Guaranteed is hereby ordered to:
1. Offer Bigham reinstatement to a position commensurate with his
experience, expertise,
compensation and position that he held at the time of his termination of employment on
December
14, 1994.
[Page 4]
2. Compensate Bigham for back pay at a rate of $708 a week from his
December 14,
1994 termination through the date of reinstatement. Guaranteed is ordered to pay interest on the
foregoing amount, to be calculated pursuant to 26 U.S.C. § 6621, and to accrue until such
time
as the foregoing back pay amount is paid;
3. Pay Complainant damages in the amount of $20,000 in
compensation for distress
suffered as the result of his termination.
4. Compensate Bigham for any health insurance premium payments
and any out of
pocket health care expenses that would have been made by insurance absent the wrongful
termination.
Further, all 401(k) contributions that would have been made by Guaranteed except for the
wrongful
termination shall be paid. 5. Expunge from its files all adverse references to the protected
activities of Bigham and
shall refrain from providing adverse information to any third party about his job performance.
- SO ORDERED.
- DAVID A. O'BRIEN
- Chair
- KARL J. SANDSTROM
- Member
- JOYCE D. MILLER
- Alternate Member
[ENDNOTES]
