Neither party has challenged the ALJ's award of attorney fees and costs.
However, Complainant seeks review of the ALJ's recommendations on the award of
compensatory damages for mental anguish and damage to reputation, and also the ALJ's denial
of an award for punitive damages. Complainant requests substantial increases in the
compensatory damages awarded, and argues that an award of punitive damages is justified by
the evidence in the case. The Air National Guard expresses support for the ALJ's
recommendations on compensatory and punitive damages, arguing that the compensatory
damage awards should be sustained as reasonable and that the ALJ was correct when he denied
punitive damages.
DISCUSSION
I. Standard of Review.
The regulations governing adjudications by the Department of Labor's
Office of Administrative Law Judges provide that "[u]nless otherwise required by statute
or regulations, hearings shall be conducted in conformance with the Administrative Procedure
Act, 5 U.S.C. 554." 29 C.F.R. §18.26 (1998). The environmental acts and the
regulations implementing those acts are silent concerning the burden of proof to be applied
in whistleblower cases. Accordingly, the APA's "preponderance of the evidence"
standard governs this case. Director, OWCP v. Greenwich Collieries, 512 U.S. 267
(1994); Steadman v. SEC , 450 U.S. 91, 102 (1981).
In reviewing an ALJ recommended decision under the whistleblower
provisions of the environmental acts, this Board also is subject to the "preponderance
of the evidence standard." Ewald v. Commonwealth of Virginia , Case No. 89-
SDW-1, Sec. Dec. and Rem. Ord. (Apr. 20, 1995). The Board is not bound by the ALJ
decision, but rather retains complete freedom of decision:
In making its decision, whether following an initial or recommended decision,
the agency is in no way bound by the decision of its subordinate officer; it
retains complete freedom of decision, as though it had heard the evidence itself.
This follows from the fact that a recommended decision is advisory in nature.
[citation omitted] Similarly, the third sentence of section [557(b)] provides that
"On appeal from or review of the initial decisions of such [hearing]
officers the agency shall, except as it may limit the issues upon notice or by
rule, have all the powers which it would have in making the initial decision.
Att'y Gen. Manual on the Administrative Procedure Act, Chap. VII §8 pp. 83-84
(1947); see also Universal Camera Corp. v. NLRB, 340 U.S. 474 (1951) (same).
II. Compensatory damage for emotional distress or mental
anguish.
By authorizing the award of compensatory damages, the environmental
statutes have created a "species of tort liability" in favor of persons who are the
objects of unlawful discrimination. Compensatory damages are designed to compensate
discriminatees not only for direct pecuniary loss, but also for such harms as impairment of
reputation, personal humiliation, and mental anguish and suffering. Martin v. Dep't of the
Army , ARB Case No. 96-131, ALJ Case No. 96-131, ARB Dec. and Ord. (July 30, 1999),
1999 WL 702416 at *13, citing Memphis Community Sch. Dist. v. Stachura ,
477 U.S. 299, 305-307 (1986).
The Secretary and this Board have long held that compensatory damage
awards for emotional distress or mental anguish should be similar to awards made in other
cases involving comparable degrees of injury. The Board recently reaffirmed this principle
in a case under the analogous whistleblower protection provisions of the Energy
Reorganization Act, noting that "an important criterion for determining whether an award
of compensatory damages is reasonable is 'whether the award is roughly comparable to awards
made in similar cases.'" Smith v. Esicorp , ARB Case No. 97-065, ALJ Case No.
93-ERA-16, ARB Dec. (Aug. 27, 1998), slip op. at 2, quoting Gaballa v. The
Atlantic Group , Case No. 94-ERA-9, Sec'y Dec. (Jan. 18, 1996). In Smith v.
Esicorp , the Board reviewed a series of earlier cases decided by the Secretary and the
Board involving compensatory damages awards for mental pain and suffering ranging from
$5,000 in a case where the complainant showed only that he became moody and depressed and
short tempered with his wife and children, to $75,000 in a discriminatory discharge case where
there was evidence of major depression supported by reports by a psychiatrist and a licensed
clinical social worker. Id. at 3-4.
Complainant's compensable injuries in this case stem from two instances
in which the Air National Guard engaged in discriminatory referencing or blacklisting. In one
of those instances, a negative reference was given to a records checking firm, not to a
prospective employer. In the other instance, negative information was given to the Office of
Personnel Management, some of which has been removed. Some references to the
information still exist at OPM, although a government agency seeking information about
Complainant would have to make a diligent search of her records to find the information.
Complainant testified that she experienced a variety of medical and
personal problems after learning that she had been blacklisted by the Air National Guard,
including severe anxiety attacks, inability to concentrate, a feeling that she no longer enjoyed
"anything in life," and marital conflict. See R. D. and O. on Remand at 8.
Her description of her mental anguish was supported by a psychologist, Dr. Carter, who
testified about the substantial effect the negative references had on Complainant. Id.
Based on the level of harm experienced by Complainant, and comparing that harm with
compensatory damage awards in other whistleblower cases, the ALJ recommended an award
of $45,000 for emotional distress, $529.28 for past medical expenses related to such
emotional distress, and an allotment of $10,000 to pay for future medical expenses related to
the Air National Guard's retaliatory conduct, as the medical expenses are incurred.
Complainant argues that the damage award for emotional distress or
mental anguish is insufficient, and that such awards under the environmental whistleblower
statutes should be set at a level comparable to damage awards by courts or juries for violations
of state or federal anti-discrimination rights statutes or in analogous tort actions (e.g. ,
violation of privacy rights). Complainant notes that the compensatory damage awards in these
other types of cases often are substantially higher than the amounts recommended by the ALJ.
We reaffirm our long-standing policy that a key step in determining the
amount of compensatory damages is a comparison with awards made in similar cases.
Smith v. Esicorp . However, we agree with Complainant that damage awards under
other discrimination or discrimination-related statutes can be instructive in setting damage
awards in environmental whistleblower statutes before the Department of Labor, even though
the levels of compensatory damages awarded under these other statutes are not controlling.
We emphasize that there is no arbitrary upper limit on the amount of compensatory damages
that may be awarded under the whistleblower protection provisions enforced by the
Department; indeed, as a practical matter, exclusive reliance on damage awards in prior
whistleblower cases easily could result in the level of compensatory damages becoming frozen
in time, ignoring even such basic factors as inflation a result that would be inconsistent with
the statutory mandate that the victims of unlawful discrimination be compensated for the fair
value of their loss.
Any attempt to set a monetary value on intangible damages such as mental
pain and anguish involves a subjective judgment. Based on the record before us, we find that
ALJ's recommendation of an award of $45,000 for emotional distress is reasonable, and we
adopt it.
We also find that the ALJ's award of $529.28 for past medical expenses
and $10,000 for future medical expenses is reasonable in the circumstances of this case. It
is difficult to determine in advance how many hours of counseling Complainant will require,
but based on the amount she has already incurred, $10,000 for future medical expenses is a
reasonable approximation. The ALJ also ordered that Complainant submit her bills for medical
treatment to Respondent for payment. We find that this is a reasonable procedure that will
assure that Complainant is reimbursed for medical expenses actually incurred.
III. Compensatory damage award for injury to professional reputation.
The ALJ awarded $25,000 for damage to Complainant's professional
reputation based on two factual findings. He found that OPM still has adverse information on
file about Complainant and that OPM provided this information to the Federal Highway
Administration on two occasions. The presence of this information apparently did not
interfere with Complainant's ability to obtain other jobs, because after leaving the Air National
Guard she was hired by the Federal Highway Administration and by the Commonwealth of
Virginia as an environmental specialist. Still, we agree with the ALJ's conclusion that
Complainant's professional reputation will continue to be affected by the presence of this
adverse information in OPM files, which would be available to any federal agency. The fact
that the adverse personnel recommendation remains on file at OPM can be presumed to have
an effect on Complainant's professional reputation, and a $25,000 damage award for that injury
is reasonable.
IV. Exemplary damages.
The ALJ denied an award for exemplary damages, finding that when the
Air National Guard made the two negative references about Complainant, it did not act with
reckless or callous disregard of Complainant's rights. We agree.
The Supreme Court has held that punitive damages may be awarded where
there has been "reckless or callous disregard for the plaintiff's rights, as well as
intentional violations of federal law . . . ." Smith v. Wade , 461 U.S. 30, 51
(1983). The Court explained the purpose of punitive damages is
"to punish [the defendant] for his outrageous conduct and to deter him and
others like him from similar conduct in the future." Restatement
(Second) of Torts §908(1) (1979). The focus is on the character of the
tortfeasor's conduct i.e. , whether it is of the sort that calls for
deterrence and punishment over and above that provided by compensatory
awards.
Id. at 54. The record does not show that Lt. Colonel Purple, the Air National Guard
supervisor who gave the negative references about Complainant, acted with the purpose or
intent to harm Complainant or with reckless disregard for her rights. See Transcript
of hearing 345. We adopt the ALJ's recommendation that punitive damages be denied.
V. Attorney fees and costs
The ALJ recommended an award of $113,085.00 in attorney fees and
$12,930.13 in costs incurred through March 11, 1998. In addition, the ALJ recommended that
Complainant be awarded $830.81 for costs she incurred personally. Complainant has
expressed support for these awards, and the Air National Guard has not opposed them. We
adopt the ALJ's recommendations on the award of attorney fees and costs.
CONCLUSION
In light of these determinations, it is ORDERED that
Respondent Secretary of the Air Force pay Complainant the following damages:
1. $45,000 for mental pain and anguish;
2. $25,000 for injury to professional reputation;
3. $529.28 for past medical expenses
4. $10,000 for future medical expenses, provided that Complainant obtains
medical treatment for mental pain and suffering caused by Respondent's actions and
submits her bills for that treatment to Respondent for payment.
5. $113,085 in attorney fees for services rendered through March 11, 1998.
6. $12,930.13 in costs incurred by Complainant's attorneys through March 11,
1998.
7. $830.81 in costs incurred by Complainant between June 18, 1996 and March
11, 1998.
It is further ORDERED that Complainant may, within 20 days
from the date of this Decision and Order, submit to this Board an itemized petition for
additional attorney fees and other litigation expenses incurred after March 11, 1998.
Complainant shall serve the petition on Respondent, who shall submit any response within 30
days after the date of this Decision and Order. This Board will issue a supplemental order after
considering the additional attorney fee petition and any response.7 8
SO ORDERED.
PAUL GREENBERG Chair
CYNTHIA L. ATTWOOD Member
[ENDNOTES]
1 see Respondent's Rebuttal Brief at 16, n.5). Complainant has not objected to the addition
to this second respondent; the complaint therefore is amended to reflect the Secretary of the Air Force as
a respondent.
2
3
4
Before 6/18/96 6/18/96 - 3/18/98 Total
Attorney fees $72,452.50 $40,632.50 $113,085.00
Costs $12,736.07 $194.06 $12,930.13
See ALJ Recommended Supplemental Dec. and Ord., Apr. 17, 1998.
5
6 inter alia , for ARB review of environmental "whistleblower"
complaints only upon the filing of an appeal by a party aggrieved by an Administrative Law Judge's decision.
See 63 Fed. Reg. 6614 (Feb. 9, 1998). Here, the Administrative Law Judge issued a recommended
decision and order on December 3, 1997; accordingly, this matter is before the Board pursuant to the
automatic review provision of the pre-1998 regulation.
7
8 Fluor Constructors, Inc. v. Reich , 111 F.3d 979 (11th Cir. 1997) (under the
analogous employee protection provision of the Energy Reorganization Act, a decision that resolves all issues
except attorney fees is final).
