USDOL/OALJ Nuclear and Environmental Whistleblower Digest
DIVISION XVI -- DAMAGES AND REMEDIES
SUBDIVISION C -- BACK PAY, AND OTHER TERMS, CONDITIONS AND
PRIVILEGES OF EMPLOYMENT
[Last updated March 13, 2007]
XVI. Damages and remedies
* * *
C. Back pay, and other terms, conditions and
privileges of employment
In Adams v. Coastal Production Operators, Inc., 89-
ERA-3 (Sec'y Aug. 5, 1992), the Secretary remanded the matter to
the ALJ to take evidence and issue a recommended decision on back
pay for a period not originally considered by the ALJ. In so
doing, the Secretary directed the ALJ to make the review "in
light of other decisions discussing damages in whistleblower
cases" such as Blackburn v. Metric Constructors,
Inc., 86-ERA-4 (Sec'y Oct. 30, 1992) (Decision and Order on
Damages and Attorney's Fees and Remand), slip op. at 11-14,
appeal docketed, No. 91-2385 (4th Cir. Dec. 20, 1991);
Johnson v. Old Dominion Security, 86-CAA-3 (Sec'y May 29,
1991), slip op. at 23-24; Wells v. Kansas Gas & Elec.
Co., 85-ERA-22 (Sec'y Mar. 21, 1991), appeal
dismissed, No. 91-9526 (10th Cir. Aug. 23, 1991). See
also B. Schlei and P. Grossman, Employment Discrimination
Law,
Five-Year Cum. Supp., Ch. 38 at 540 and n.86 (2d ed. 1989).
[Editor's note: Adams v. Coastal Production Operators,
Inc., 89-ERA-3, did not arise under the Energy
Reorganization Act, although the OALJ gave it an "ERA"
docket number. It was actually a Federal Water Pollution Control
Act case.]
BACKPAY; PROCEEDINGS ON REMAND [N/E Digest XVI C 1]
In Mosbaugh v. Georgia Power Co., 91-ERA-1 and
11 (Sec'y Nov. 20, 1995), the Secretary noted that the record
reflected the Complainant's monthly salary at the time of
discharge, but did not include a calculation of the exact amount
of back pay owed (e.g., salary increases). The Secretary
remanded to the ALJ for "further proceedings he deems
necessary in this regard and for a recommended decision setting
forth the amount of back pay."
The purpose of a back pay award is to make the employee whole,
that is, to restore the employee to the same position he would
have been in if not discriminated against. Back pay awards
should, therefore, be based on the earnings the employee would
have received but for the discrimination. Blackburn v.
Metric Constructors, Inc., 86-ERA-4 (Sec'y Oct. 30,
1991).
XVI C 1 a Purpose
The purpose of a back pay award is to make the employee whole,
that is to restore the employee to the same position he would
have been in if not discriminated against. See Blackburn v.
Metric Constructors, Inc., 86-ERA-4 (Sec'y Oct. 30, 1991),
slip op. at 11.
Beck v. Daniel Construction Co., 86-ERA-26 (Sec'y
Aug. 3, 1993).
In Larry v. Detroit Edison Co., 86-ERA-32 (Sec'y
June 28, 1991), the Secretary awarded only reinstatement where
the Complainant did not request a back pay award.
A complainant has the burden of establishing the amount of back
pay that a respondent owes. Pillow v. Bechtel
Construction, Inc., 87-ERA-35 (Sec'y July 19, 1993).
[Nuclear and Environmental Digest XVI C 1 c] DAMAGES; FRINGE BENEFITS; UNCERTAINTY RESOLVED IN FAVOR OF THE COMPLAINANT
In Tipton v. Indiana Michigan Power Co., ARB No. 04-147, ALJ No. 2002-ERA-30 (ARB Sept. 29, 2006),
PDF |
HTM
the ARB affirmed the ALJ's award of fringe benefits in the amount of 33% of the Complainant's annual salary, noting that "any uncertainty in the exact dollar amount of fringe benefits must be resolved in favor of [the Complainant] and against [the Respondent] as the discriminating party. McCafferty v. Centerior Energy, 96-ERA-6, slip op. at 7 (ARB Sept. 24, 1997).
[Nuclear & Environmental Whistleblower Digest XVI C 1 c] BACKPAY; UNCERTAINTIES RESOLVED AGAINST RESPONDENT
In Gutierrez v. Regents of the University of California, ARB No. 99-116, ALJ No. 1998-ERA-19 (ARB Nov. 13, 2002), the ARB adopted the ALJ's analysis and findings on the backpay award. For the fiscal year in question, DOE authorized Respondent to increase the technical staff member payroll by 4%. The ALJ found that Respondent's managers determined each individual's salary increases by weighing several factors that could not be reduced to a precise mathematical formulation, and that there was considerable variability among employees in the same peer group. The ALJ also found that Respondent had failed to take into consideration all of Complainant's duties during the relevant assessment period and that his protected activities resulted in fewer duties. Thus, in light of all these factors and that "uncertainties in determining what an employee would have earned but for discrimination, should be resolved against the discrimination [party]," the ALJ concluded that a 4% pay raise would restore Complainant to the same position he would have been in had there been no discrimination.
[N/E Digest XVI C 1 c]
BACK PAY; UNCERTAINTIES RESOLVED AGAINST DISCRIMINATING PARTY
Uncertainties in establishing the amount of back pay to be awarded are to be resolved against the
discriminating party. McCafferty v. Centerior
Energy, 96-ERA-6 (ARB Sept. 24, 1997).
XVI C 1 c]
BACK PAY; PREJUDGMENT INTEREST; UNCERTAINTY RESOLVED IN FAVOR
OF COMPLAINANT
In Johnson v. Bechtel
Construction Co., 95-ERA-11 (Sec'y Sept. 11, 1995),
in regard to the calculation of
the beginning date for an award of prejudgment interest on the
back pay award, the Respondent's contention of the earliest date
the Complainant would have been hired to work for an outage was
rejected where a different laborer was hired eleven days earlier.
The Secretary based this ruling on the principle that
uncertainties in back pay awards are resolved in favor of the
successful complainant and against the discriminating party.
Citing Nichols v. Bechtel
Construction Inc., 87-ERA-44, slip op. at 10 (Sec'y Nov.
18, 1993), aff'd sub nom. Bechtel Construction Co. v. Sec'y of
Labor, 50 F.3d 926 (11th Cir. 1995).
XVI C 1 c Separate statements in post-hearing briefs may
be viewed as stipulation
Where both the complainant and the respondent agreed in their
post-hearing briefs to the ALJ to use a seven/seven shift for
calculating back pay, the statements in the separate documents
may be viewed as a stipulation as to how to calculate back pay.
Adams v. Coastal Production Operators, Inc., 89-
ERA-3 (Sec'y Aug. 5, 1992).
[Editor's note: Adams v. Coastal Production Operators,
Inc., 89-ERA-3, did not arise under the Energy
Reorganization Act, although the OALJ gave it an "ERA"
docket number. It was actually a Federal Water Pollution Control
Act case.]
XVI C 1 c. Exactitude not required; uncertainties resolved
against discriminating party
Because back pay promotes the remedial statutory purpose of
making whole the victims of discrimination, "unrealistic
exactitude is not required" in calculating back pay, and
"uncertainties in determining what an employee would have
earned but for the discrimination, should be resolved against the
discriminating [party]." EEOC v. Enterprise Ass'n
Steamfitters Local No. 638, 542 F.2d 579, 587 (2d Cir. 1976),
cert. denied, 430 U.S. 911 (1977), quoting Hairston v.
McLean Trucking Co., 520 F.2d 226, 233 (4th Cir. 1975).
See NLRB v. Browne, 890 F.2d 605, 608 (2d Cir. 1989) (once
the plaintiff establishes the gross amount of back pay due, the
burden shifts to the defendant to prove facts which would
mitigate that liability). Lederhaus v. Donald Paschen
& Midwest Inspection Service, Ltd., 91-ERA-13 (Sec'y
Oct. 26, 1992), slip op. at 9-10.
XVI C 1 c Back pay; burden of proof
The complainant bears the burden of establishing the amount of
back pay that a respondent owes. Adams v. Coastal
Production Operators, Inc., 89-ERA-3 (Sec'y Aug. 5,
1992).
[Editor's note: Adams v. Coastal Production Operators,
Inc., 89-ERA-3, did not arise under the Energy
Reorganization Act, although the OALJ gave it an "ERA"
docket number. It was actually a Federal Water Pollution Control
Act case.]
XVI C 1 c Interference with employment
opportunities; presumption of
entitlement to lost wages
In Artrip v. Ebasco Services, Inc., 89-ERA-23
(Sec'y Mar. 21, 1995), the Respondent, a
former employer, controlled access to employment opportunities,
and denied the Complainant such
access based on invidious criteria. The Secretary found that the
Respondent bears the burden of
disproving the Complainant's entitlement to lost wages under
these circumstances.
In making this finding, the Secretary relied on a general
principle that once discrimination has been
proven, a presumption of entitlement to back pay arises, with the
burden shifting to the employer to
rebut the presumption by showing that the discriminatee would not
have been hired absent the
discrimination.
Although the Respondent would not have made the ultimate hiring
decision, the Secretary found that
given a close, intertwined employment relationship between the
Respondent and the contractor that
requested referrals, witnesses and records on this issue should
have been easily accessible. The ALJ
had found that the Complainant was not as qualified as the other
former employees who were referred,
but the Secretary found no evidence in the record to support this
finding, and rejected it.
See Guttman v. Passaic Valley Sewerage Commissioners, 85-
WPC-2 (Sec'y June 4, 1992) (denial of stay request pending review
by court of appeals; neither mere possibility of success on
appeal nor certain economic loss in the interim is sufficient to
warrant a stay).
STAY OF PRELIMINARY ORDER OF RELIEF UNDER ERA
[N/E Digest XVI B 6; XVI C 1 d]
In McCafferty v. Centerior Energy,
96-ERA-6 (ARB Oct. 16, 1996),
Respondents sought an order staying a preliminary order that Respondent comply with the relief
ordered by the ALJ in his Recommended Decision and Order. The Board, noting that this matter
was a bit unusual in that it involves a preliminary agency order rather than a final order, applied
the four part test of State of Ohio ex rel. Celebrezze v. N.R.C., 812 F.2d 288, 290 (6th
Cir. 1987) in denying the motion. The Board found neither a strong or substantial likelihood of
success by Respondent on review of the merits, no strong showing of irreparable harm
("mere" financial loss of back pay not sufficient to establish irreparable harm;
Complainants not shown to be judgment proof; since power plant is not currently in outage,
unlikely that Complainants would be immediately reinstated), but a strong public interest in
favor
of preliminary orders in ERA cases.
See Adams v. Coastal Production Operators, Inc., 89-ERA-3
(Sec'y Aug. 5, 1992) (a co-respondent may be held liable for back
pay even though it was not a knowing participation in the
discrimination).
In Sprague v. American Nuclear Resources, Inc.,
92-ERA-37 (Sec'y Dec. 1, 1994), the
Secretary adopted the ALJ's conclusion that back pay should be
calculated based on the average hours
worked by persons in Complainant's position.
DAMAGES; BACK PAY; DISCRIMINATION IMPAIRS COMPLAINANT'S ABILITY
TO WORK IN INDUSTRY
[N/E DIGEST XVI C 2]
Back pay award continued to date of final judgment where Employer's failure to hire
Complainant prevented him from working in the nuclear industry to the present. Complainant
was not hired because he refused to sign a waiver releasing Employer for any and all liability.
Because of this refusal, Employer denied Complainant unescorted access to the nuclear facility.
Employer notified an agency of this denial, which ensured that other employers would learn
Complainant had been denied unescorted access. Doyle v. Hydro Nuclear Services,
89-ERA-22 (ARB Sept. 6, 1996).
XVI. C. 2. Computation of back pay
In Thomas v. Arizona Public Service Co., 89-ERA-19
(Sec'y Sept. 17, 1993), the Secretary ordered the Respondent to
promote Complainant to a position for which she was denied based
on reasons established to be pretext for discrimination. The
Secretary also ordered back pay from the date of denial of the
promotion.
XVI C 2 Memorandum of agreement not sufficient
The ALJ recommended approval of a settlement agreement. For
reasons of confidentiality, the actual agreement was not
submitted to the ALJ or the Secretary. The Secretary ordered the
parties to submit a copy of the settlement agreement so he could
determine whether it was fair, adequate and reasonable. The
Secretary has previously held that a settlement agreement cannot
be approved unless such a determination has been made, especially
when the agreement has legal precedence over the memorandum of
settlement.
Once submitted for review, all submissions including settlement
agreements and all related documents become part of the public
record in the case, and are subject to the Freedom of Information
Act. The parties, however, may designate specific information as
confidential commercial information to be handled as provided in
29 C.F.R. Part 70.
McCoy v. Utah Power/Pacific Power, 94-CAA-1 and 6
(Sec'y Mar. 22, 1994).
XVI C 2 Generally
The Secretary remanded the case for the ALJ to make a recommended
back pay calculation in Blake v. Hatfield Electric
Co., 87-ERA-4 (Sec'y Jan. 22, 1992) (during the remand,
the parties settled, see Deputy Secretary's order approving
settlement of May 28, 1992). The ALJ was instructed to receive
necessary supplemental evidence and to calculate back pay in
accordance with the standards established by the Secretary in
Johnson v. Old Dominion Security, 86-CAA-3, 4, 5 (Sec'y
May 29, 1991), slip op. at 232-24 and Wells v. Kansas Gas
& Electric, 85-ERA-22 (Sec'y Mar. 21, 1991), slip op. at
17.
XVI. C. 2. Computation of back pay
In Thomas v. Arizona Public Service Co., 89-ERA-19
(Sec'y Sept. 17, 1993), the Secretary ordered the Respondent to
promote Complainant to a position for which she was denied based
on reasons established to be pretext for discrimination. The
Secretary also ordered back pay from the date of denial of the
promotion.
In Tracanna v. Arctic Slope Inspection
Service, 1997-WPC-1 (ALJ
Sept. 18, 1998), Complainant proffered two alternative methods for calculating back pay -- a
formula method that made certain assumptions about weeks and hours worked, and a
"similarly situated employee" method. The ALJ found in his recommended decision
that the similar employee method was better suited in the instant case because the formula
method would not take into consideration the possibility of personal time, spontaneous work-
load increases or decreases, or the general level of activity for inspectors during the relevant time
period. The ALJ agreed with Complainant's choice of a similarly situated employee, whose
experiences, qualifications and backgrounds were similar.
[N/E Digest XVI C 2 a]
BACK PAY; USE OF AVERAGE NUMBER OF HOURS WORKED BY COWORKERS
In Hoffman v. Bossert,
94-CAA-4 (ARB Jan. 22, 1997), the Board
found that Complainant's calculation of back pay by multiplying the prevailing wage rate by the
average number of hours worked by other employees was valid.
A successful ERA complainant is entitled only to the same
treatment as other employees in the same position who were
retained after a layoff. If the complainant would have been laid
off after that date, back pay would be cut off at that point, and
the complainant would not be entitled to be retained until all
other inspectors have been laid off. The Secretary remanded to
the ALJ for further fact finding. Blake v. Hatfield
Electric Co., 87-ERA-4 (Sec'y Jan. 22, 1992) (during the
remand, the parties settled, see Deputy Secretary's order
approving settlement of May 28, 1992).
[N/E Digest XVI C 2 b]
BACK PAY; UNCERTAINTIES RESOLVED IN FAVOR OF COMPLAINANT
In Hoffman v. Bossert,
94-CAA-4 (ARB Jan. 22, 1997), the Board
found that the ALJ erred in concluding that the earlier of two possible dates that Complainant
may have been laid-off should be used to determine back pay. The Board found that the ALJ
failed to apply the principle that any uncertainties in calculating back pay are resolved in favor of
the complainant.
BACK PAY; DISCRIMINATING RESPONDENT BEARS BURDEN OF PROVING
THAT COMPLAINANT WOULD NOT HAVE BEEN HIRED IF PROPERLY REFERRED
FOR ANOTHER JOB; LIABILITY BEGINS ON DATE COMPLAINANT WOULD HAVE
BEGUN NEW JOB
[N/E Digest XVI C 2 b]
Where a respondent retaliates against a complainant by refusing to refer that complainant
to another employer for possible employment, that respondent bears the burden of proving that
the complainant would not have been hired even if he had been referred for the job. If the
respondent fails to meet that burden, back pay relief is available for the complainant.
In this circumstance, where the respondent's layoff of the complainant was not unlawful,
the backpay period does not begin with the date of the layoff, but the date when he or she would
have first begun working on the other job.
BACK PAY; LIABILITY ENDS WOULD EMPLOYMENT WOULD HAVE ENDED
LAWFULLY
[N/E Digest XVI C 2 b i]
The period of an employer's liability for back pay ends when the employee's permanent
employment would have ended for reasons independent of the violation found. A complainant
working on a fixed term contract, however, may be entitled to back pay beyond that term if he or
she establishes that the employment would have continued beyond the end of the contract.
Artrip v. Ebasco Services, Inc.,
89-ERA-23 (ARB Sept. 27, 1996).
BACK PAY; PRESUMPTION OF LAST LAID OFF
[N/E Digest XVI C 2 b i]
In Artrip v. Ebasco Services, Inc.,
89-ERA-23 (ARB Sept. 27,
1996), the ALJ applied the principle expressed in Nichols v. Bechtel Constr.
Inc., 87-ERA-44, slip op. at 9-10 (Sec'y Nov. 18, 1993), aff'd, 50 F.2d 926 (11th Cir.
1995), to apply an assumption that Complainant would have been the last laid off. Respondent
proffered that the principles of Dougherty v. Barry, 869 F.2d 605, 614 (D.C. Cir. 1989),
should be applied to reduce the award based on the odds that Complainant would not have been
the one person retained.
In Dougherty, eight firefighters charged and proved discrimination when two
other firefighters were promoted, and the court ruled that a pro rate back pay scheme was
appropriate since each would not have received the promotion. In Artrip,
however, the record did not establish that only one worker could possibly have continued past the
date five of the six contract workers were laid off. The Board found that in view of the
uncertainties in the record, the Nichols presumption of last laid off should apply.
BACK PAY; EXTENSION BEYOND LAWFUL LAYOFF PERIOD NOT
APPROPRIATE WHEN CHANCES FOR REHIRE SPECULATIVE
[N/E Digest XVI C 2 b i]
In Artrip v. Ebasco Services, Inc., 89-ERA-23 (ARB Sept. 27, 1996),
after the fixed-term contract of employment ended on a job from which Complainant had been
unlawfully denied referral, several workers were rehired, but there was no evidence of direct
transfers or promises of future work. This was insufficient evidence to extend the back pay
period for Complainant beyond the lawful layoff date.
DAMAGES; BACK PAY; SHORT TERM PROJECT; EVIDENCE OF CONTINUED
EMPLOYMENT OF CONTRACTORS
[N/E DIGEST XVI C 2 b i]
On computing back pay award, the Administrative Review Board looked at similarly
situated employees to determine whether Complainant's employment with Employer would have
continued after the end of the contract. Complainant's contract was for an outage which actually
lasted one month. The ALJ and Secretary both found that Employer regularly rehired or retained
contract workers such as Complainant, and this evidence demonstrated that Complainant's
employment would have continued after the completion of the original contract. Doyle v. Hydro Nuclear Services,
89-ERA-22 (ARB Sept. 6, 1996).
BACK PAY; CUT-OFF DATE BASED ON LAY-OFF
[N/E Digest XVI C 2 b i]
In Creekmore v. ABB Power Systems Energy Services,
Inc., 93-ERA-24 (Dep. Sec'y Feb. 14, 1996, where the
managers who took over the Complainant's work
responsibilities were not laid off when the Respondent was
sold, restructured and moved, the Respondent failed to
demonstrate that the back pay award should be cut off at the
time of the sale.
BACK PAY; PERIOD BEYOND ORIGINAL TERM OF EMPLOYMENT OF
CONTRACT WORKER [N/E Digest XVI C 2 b i]
In Doyle v. Hydro Nuclear Services, 89-ERA-22
(ALJ
Nov. 7, 1995), the ALJ applied the analysis of Walker v.
Ford Motor Co., 684 F.2d 1355 (11th Cir. 1982) in
computing back pay for a contract employee. Walker
indicates that in cases of fixed term contracts, a
complainant must initially introduce some evidence showing
that the economic injury resulting from the discharge
extended beyond the employment term. Walker, 684
F.2d at 1362. This proof may consist of no more than a
showing that the particular complainant's contract had been
renewed in the past, that contracts of similarly situated
employees had been renewed, or that the employer had made a
promise of continued employment. In Doyle,
the
evidence failed to show that the Complainant would have been
rehired at the facility he was working at; however, the
evidence also showed that similarly situated employees found
work at other facilities under contract and that the
Complainant would have found such work except for the
Respondent's denial of unescorted access to the Complainant
(which in effect, was a blacklisting). The ALJ concluded
that the Respondent was liable for back pay beyond the
original term of employment.
XVI C 2 b i BACK PAY; PROOF OF SUBSEQUENT LEGITIMATE LAY
OFF
In Hoffman v.
Bossert, 94-CAA-4 (Sec'y Sept.
19, 1995), there was evidence that the number of workers employed
by the Respondent, a roofing company, varied with the season and
the amount of work. It was possible that the Respondent may have
legitimately laid off the Complainant at some time after the date
of the illegitimate layoff. The Secretary directed that, on
remand, if the parties could not agree on the amount of back pay
owed, the ALJ shall take evidence and make findings on any such
legitimate periods of lay off and the resulting amount of back
pay.
[N/E Digest XVI C 2 b i]
BACK PAY; EVIDENCE OF LAYOFFS STANDING ALONE INSUFFICIENT TO
ESTABLISH COMPLAINANT WOULD HAVE BEEN LAID OFF
Where Respondent presented evidence that its work force declined and expanded during
the relevant back pay period, but did not show that layoffs were based strictly on seniority, or
establish the seniority of the employees who were laid off and those who were retained, the
Board
in Hoffman v. Bossert, 94-CAA-4
(ARB Jan. 22, 1997), found that
Respondent did not overcome a presumption that Complainant was entitled to back pay for the
full period.
XVI C 2 b i Termination of entitlement when project
ends
Where the Complainant's employment was as a construction worker
for a contractor hired during the construction of the nuclear
plant, which employment would have ended with completion of the
plant construction, back pay entitlement ends at the end of the
construction project or when the employment position was
abolished. Beck v. Daniel Construction Co., 86-ERA-26 (Sec'y
Aug. 3, 1993) (remanding case to ALJ for determination of when
Complainant would have been terminated from the position).
XVI C 2 b i Presumption of last laid off
Where an entire crew is laid off over time, but it is uncertain
when the complainant would have been laid off, the complainant is
entitled to a presumption that he would have been the last worker
laid off. See Nichols v. Bechtel Construction,
Inc., 87-ERA-44 (Sec'y Nov. 18, 1993).
XVI C 2 b i Last employee in work group laid off
On remand from the Secretary, the ALJ in Nichols v.
Bechtel Construction, Inc., 87-ERA-44 (ALJ May 4, 1993),
found that the Complainant was entitled to receive back pay only
for the period ending when the last employee in his work group
was let go on a lay off (citing Blackburn v. Metric
Constructors, Inc., 86-ERA-4 (Sec'y Oct. 4, 1991)).
Although inclined to award back pay for a period during which
coworkers from his work group were rehired, the ALJ found that
the Complainant had failed to make a record on which such an
award could be calculated, and therefore had failed to carry his
burden on the issue.
XVI C 2 b i Back pay liability to date Complainant's
position or comparable position no longer
exists
In Sprague v. American Nuclear Resources, Inc.,
92-ERA-37 (Sec'y Dec. 1, 1994), the
Secretary determined that the Complainant was entitled to back
pay from the date of discharge to the
date of reinstatement to the position held on the day of
discharge (tool accountability technician) or a
comparable position (or the date of declination of
reinstatement). The Secretary held, however, that if
the Respondent demonstrates that there are no tool accountability
technician or any comparable
positions, back pay shall end on the date the tool accountability
technician position ended.
XVI C 2 b i Back pay; duration
The Secretary has adopted for ERA cases the "long accepted
rule of remedies in labor law that the period of an employer's
liability ends when the employee's employment would have ended
for reasons independent of the violation found. Thus,
Complainant was entitled to back pay until the end of the project
for which he was hired. The ALJ's extension of back pay
liability beyond that time on the ground that because of
Complainant's unlawful termination he was in a less favorable
position than coworkers to be hired on another project with the
employer was not accepted by the Secretary where the finding was
based solely on Complainant's personal feelings that the employer
would not rehire him. Although they may have seemed plausible,
there were mere speculation. Further, Complainant presented no
evidence to rebut the testimony of a supervisor that of the 45
electricians on the project from which Complainant was
discharged, only two were employed on employer's next job.
Blackburn v. Metric Constructors, Inc., 86-ERA-4
(Sec'y Oct. 30, 1991).
XVI C 2 b i Duration of temporary work assignment
Where the record revealed that Complainant had worked for
Respondent as part of build-ups of staff during 1984-85, 1986 and
in 1987, Complainant did not establish that the 1987 hiring was
as a permanent employee, and Respondent showed that it made
substantial reductions in work force as the outage ended, the
Secretary found that even absent any discrimination, Complainant
would have been laid off by the last day of lay offs related to
the 1987 outage. Pillow v. Bechtel Construction,
Inc., 87-ERA-35 (Sec'y July 19, 1993).
[Editor's note: Respondent showed that it laid off a total of 56
laborers, including Complainant, during the end of the outage
period. It then held that number of employees between 38 and 44
for the remainder of 1987. It is not clear from the discussion
whether the Secretary took into account the circumstances of the
lay offs -- e.g., the staffing size prior to the build ups,
whether lay offs were generally based on seniority, the
composition of the remaining work force.]
XVI C 2 b i Duration of scheduled outage
A scheduled outage at a nuclear power plant involving defueling
and refueling of the reactor. It is a time during which workers
make repairs and modifications to the plant, and is a period of
increased employment. Tritt v. Fluor Constructors,
Inc., 88-ERA-29 (Sec'y Aug. 25, 1993); to the same effect
Pillow v. Bechtel Construction, Inc., 87-ERA-35
(Sec'y July 19, 1993).
In Tritt v. Fluor Constructors, Inc., 88-ERA-29
(Sec'y Aug. 25, 1993), the Secretary adopted the ALJ's findings
of fact, but came to a different legal conclusion -- that
Respondent had violated the employee protection provision of the
ERA. Since Complainant was hired to work during an outage that
was coming to an end at the time of his discharge, Respondent was
liable for back pay only until the date when Complainant's
employment would have ended but for the unlawful discharge. The
Secretary remanded to the ALJ for a determination on the
calculation of back pay and a determination whether Complainant
is entitled to compensatory damages. Complainant did not seek
reinstatement.
XVI C 2 b i Entitlement only to point of legitimate lay
off
Back pay awards are based on the earnings the employee would have
received but for the discrimination. Thus, when an employee who
was laid off for discriminatory reasons nevertheless would have
been laid off for legitimate reasons, back pay would be cut off
at the point of the legitimate layoff. Nichols v. Bechtel
Construction, Inc., 87-ERA-44 (Sec'y Nov. 18, 1993).
XVI C 2 b i Back pay liability only until employment would
have ended anyway
It is a long accepted rule of remedies in labor law that the
period of an employer's liability ends when the employee's
employment would have ended anyway for reasons independent of the
violation found. See Walt Disney Productions, 48 N.L.R.B.
No. 892 (1944), enf'd as modified, 146 F.2d 44 (9th Cir.
1944). But the cases require some explicit act or concrete event
to cut off backpay or extinguish the right to reinstatement. In
Knickerbocker Plastic Co., 132 N.L.R.B. No. 1209 (1961),
for example, the National Labor Relations Board denied
reinstatement to a discharged employee who had declined an
explicit offer of reinstatement by the employer. See also
Ford Motor Co. v. EEOC, 458 U.S. 219, 231-232 (1982). In
Bourque v. Powell Electrical Co., 617 F.2d 61, 66 (5th
Cir. 1980), an employee who proved wage discrimination was
entitled to backpay only until the date she resigned.
The Secretary noted that, in contrast, the NLRB has
"consistently . . . discounted statements, prior to a good
faith offer of reinstatement, indicating unwillingness to accept
reinstatement." Heinwick Motor, Inc., 166 N.L.R.B.
No. 88 (1967), 1967 CCH NLRB 21,654, at 28,297. The Secretary
then stated that the reasons for the NLRB rule in discharge cases
were equally applicable to the case at bar -- the ALJ had found
that the Complainant, who had been demoted as a result of his
protected activity, was considering making a request to be
relieved of his supervisory duties and recommended limiting the
remedy to two weeks backpay so that the Complainant would not get
a windfall. The Secretary quoted Heinwick Motors:
We are mindful of the fact that such statements may
reflect only a momentary state of mind that is subject to
change: prior to an offer of reinstatement, such statements
are in the nature of answers to a hypothetical question; and
the discriminatee's expression 'may have been made in the
heat of dissatisfaction with his treatment by
Respondent.'
Id. (footnotes omitted). A comment made to a co-worker is
not the kind of explicit act or concrete event which is
sufficient to toll an employer's backpay liability.
Francis v. Bogan, Inc., 86-ERA-8 (Sec'y Apr. 1,
1988).
In Atchison v. Brown & Root, Inc., 82-ERA-9
(Sec'y June 10, 1983), reversed on other grounds sub nom.,
Brown & Root v. Donovan, 747 F.2d 1029 (5th Cir. 1984),
dismissed on remand (Sec'y Apr. 12, 1985), it was discovered that
Complainant had misrepresented his educational qualifications for
the job. The Secretary found that Respondent would have
discharged Complainant as soon as it discovered the
misrepresentation even if he had not engaged in protected
activity. The Secretary stated that "[f]iling a complaint
under the ERA, and even proof that the firing itself was
improperly motivated, should not insulate [Complainant] from
other, legitimate, management actions. Therefore, I do not think
it would be appropriate, under my authority to order affirmative
action to abate a violation found (29 C.F.R. 24.6(b)(2)), to
require reinstatement of an employee who repeatedly
misrepresented material facts about his background, or to order
back pay beyond the date of discovery of the misrepresen-
tation."
[Editor's note: It is not clear from either the Secretary or the
ALJ's decisions how Respondent discovered the misrepresentation,
but it was a couple months after Complainant was discharged. In
this case, Respondent apparently did not advance an "after
acquired evidence" defense for its burden of articulation,
but only in regard to the extent of damages.
On appeal, the Fifth Circuit ruled that Complainant's internal
complaints did not support an ERA employee protection complaint.
Although the Secretary dismissed Atchinson's complaint on remand,
in subsequent Fifth Circuit cases, the Secretary has declined to
acquiesce in Brown & Root.]
[N/E Digest XVI C 2 b ii]
BACK PAY LIABILITY; TERMINATION ON DATE EMPLOYMENT WOULD HAVE
ENDED FOR REASONS INDEPENDENT OF VIOLATION
Under both the ERA and the environmental whistleblower provisions, the period of an
employer's liability for back pay ends when the employee's employment would have been
terminated for reasons independent of the violation found. See Oliver v. Hydro-Vac
Services, Inc., 91-SWD-1 (ARB Jan. 6, 1998).
[N/E Digest XVI C 2 b ii]
RESPONDENT'S TERMINATION OF QUALITY ASSURANCE/QUALITY CONTROL
DIVISION; EFFECT ON BACK PAY/REINSTATEMENT LIABILITY
Where Respondent had been sold and relocated, and its quality assurance/quality control
(QA/QC) business effectively eliminated, all persons involved in the QA/QC functions laid off,
and there was no substantially similar position for which Complainant is qualified under the new
business structure, the ALJ recommended a holding that Respondent's liability for back pay and
reinstatement terminated on the date Respondent's QA/QC was ended. In making this
determination, the ALJ took into consideration whether QA/QC employees would have had
transfer rights, and the Deputy Secretary's holding in a remand order that Respondent's decision
to withdraw from the QA/QC business and to lay off staff was a legitimate business decision.
Creekmore v. ABB Power Systems Energy Services, Inc., 93-ERA-24 (ALJ
Dec. 1, 1997).
BACK PAY; DEDUCTION OF UNEMPLOYMENT COMPENSATION; BOARD
REJECTS VIEW THAT SUCH DEDUCTIONS ARE A MATTER FOR DISCRETION OF
THE TRIAL COURT
[N/E Digest XVI C 2 c ii]
The Board in Artrip v. Ebasco Services,
Inc., 89-ERA-23 (ARB Sept.
27, 1996), noted a spilt among the circuits in discrimination cases over whether a deduction of
unemployment compensation in regard to a back pay award should be prohibited or left to the
discretion of the trial court. The Board noted that the instant case arose in the Fifth Circuit,
which follows a minority view that such deductions are discretionary (the court also holds this
view in regard to the collateral source rule). Observing that no court had addressed this issue
under the ERA or similar whistleblower laws, and that the Secretary of Labor has consistently
held that unemployment compensation is not deductible in such cases, the Board held that
unemployment benefits are not deductible from gross back pay.
In some circumstances an employer may not be liable for back pay
during periods that an unlawfully discharged employee is not
available for work. In Williams v. TIW Fabrication &
Machining, Inc., 88-SWD-3 (Sec'y June 24, 1992), the
Respondent contended that the Complainant was entitled to no back
pay because he was permanently disabled from the time of his
layoff. The record, however, did not substantiate permanent
disability until a latter date, and the Secretary declined to
disallow back pay.
XVI C 2 b iii Back pay where joint employer refused
to allow complainant on job site
In Adams v. Coastal Production Operators, Inc., 89-
ERA-3 (Sec'y Aug. 5, 1992), the complainant had complained to the
employees of a waste disposal company about an oil spill he had
observed. The complainant was the skipper of a crew boat
supplied under contract to the waste disposal company by the
respondent. Before the Area Director, both the respondent and
the waste disposal company had been found in violation of the
employee protection provision of the FWPCA. The waste disposal
company did not appeal the decision, and the finding as to it
became final.
The respondent contended that it did not owe the complainant any
back pay because it did not have any work for the complainant
after the waste disposal company had ordered him off the job.
The Secretary found that, since the Area Director's finding of a
violation of the Act was final as to the waste disposal company,
the respondent was foreclosed from arguing that the respondent
could not have assigned the complainant to the waste disposal job
after the date he was ordered off the site. See Palmer v.
Western Truck Manpower, Inc., 85-STA-16 (Sec'y Mar. 13,
1992), slip op. at 3-6, appeal docketed, No. 92-70231 (9th
Cir. Apr. 13, 1992) (joint employer that has not knowingly
participated in other employer's violation of employee protection
provision of STAA may be held liable for unlawful
discrimination); Hill & Ottney v. Tennessee Valley
Authority, 87-ERA-23 and 24 (Sec'y May 24, 1989), slip op. at
2-4 (under analogous employee protection provision, respondent
may be liable for discrimination against employees of a
contractor). Accordingly, the respondent was liable for back pay
for the period between discharge and the end of the job with the
waste disposal company.
[Editor's note: Adams v. Coastal Production Operators,
Inc., 89-ERA-3, did not arise under the Energy
Reorganization Act, although the OALJ gave it an "ERA"
docket number. It was actually a Federal Water Pollution Control
Act case.]
Refusal of an unconditional offer of reinstatement to a
substantially equivalent position constitutes a breach of the
obligation to mitigate damages. Thus, in Williams v. TIW
Fabrication & Machining, Inc., 88-SWD-3 (Sec'y June
24, 1992), the Complainant was entitled to back pay only until
the date he declined to return to work.
In Berkman v. U.S. Coast Guard Academy, ARB No. 98-056, ALJ No.
1997-CAA-2 and 9 (ARB Feb. 29, 2000), the ARB held that "An employee who has been
constructively discharged usually has the burden of mitigating his damages by seeking suitable
employment. ... The respondent has the burden of establishing that the back pay award
should be reduced because the complainant did not exercise diligence in seeking and obtaining
other employment. ... Slip op. at 27 (citations omitted). In Berkman
Respondent did not submit any evidence to prove that Complainant was able to work for pay, and
therefore, did not meet its burden to show a failure to mitigate damages.
[Nuclear & Environmental Whistleblower Digest XVI C 2 b v] BACKPAY; MITIGATION OF DAMAGES
In Hobby v. USDOL, No. 01 10916 (11th Cir. Sept. 30, 2002) (unpublished) (case below ARB No. 98 166, ALJ No. 1990 ERA 30), the Eleventh Circuit reviewed the law in relation to the mitigation of damages:
The ERA does not explicitly require victims of employment discrimination to attempt to mitigate damages, but the Secretary and the ARB have consistently imposed such a requirement, in keeping with the general common law "avoidable consequences" rule and the parallel body of damages law developed under other anti discrimination statutes. Georgia Power bears the burden of proving that Hobby did not properly mitigate. ... To meet this burden, it must show that (1) there were substantially equivalent positions available; and (2) Hobby failed to use reasonable diligence in seeking these positions.... "Substantially equivalent employment" would be a position providing the same promotional opportunities, compensation, job responsibilities, working conditions, and status....
Just as the burden of proving a failure to mitigate falls on Georgia Power, so the "benefit of the doubt" ordinarily goes to Hobby. As the Sixth Circuit has observed,
A claimant is only required to make reasonable efforts to mitigate damages, and is not held to the highest standards of diligence. The claimant's burden is not onerous, and does not require him to be successful in mitigation. The reasonableness of the effort to find substantially equivalent employment should be evaluated in light of the individual characteristics of the claimant and the job market.
Rasimas, 714 F.2d at 624 (citations omitted).
* * *
The ARB recognized that the lack of a diligent search has been viewed as dispositive by our precedent in Title VII cases. See Weaver v. Casa Gallardo, Inc., 922 F.2d 1515 (11th Cir. 1991), superseded by statute on other grounds. The ARB, however, concluded:
Both Weaver and Sellers were cases under Title VII of the Civil Rights Act of 1964, and not under the Energy Reorganization Act. Although the Secretary and this Board frequently look to case law under Title VII for its persuasive authority (see discussion at 16, supra), the anti discrimination language of Title VII is different from the ERA's employee protection text. In addition, Title VII is designed primarily to vindicate private rights rather than promote the public health and safety enforcement goal of the ERA whistleblower provisions. As such, we do not find the standard articulated in Weaver to be controlling in this case; however, we conclude that even under the 2 pronged standard adopted by the Eleventh Circuit in Weaver, Georgia Power's argument fails because Hobby actively searched for alternative employment, albeit with limited success.
Hobby, No. 90 ERA 30, slip op. at 26 27 (ARB Feb. 9, 2001). As the above quotation demonstrates, it is not necessary, however, for the Court to determine whether Weaver applies to ERA cases. As the ARB held, even were it to apply Weaver, Georgia Power has failed to demonstrate that Hobby did not mitigate his damages. On appeal, Georgia Power has failed to show that such factual finding was not supported by substantial evidence.
Slip op. at 20 22 (some citations omitted).
[Nuclear & Environmental Digest XVI C 2 b v]
MITIGATION OF DAMAGES
A respondent bears the burden of proving that the complainant did not properly mitigate damages. To meet this burden, the respondent must show that (1) there were substantially equivalent positions available; and (2) the complainant failed to use reasonable diligence in seeking these positions. The benefit of a doubt ordinarily goes to the complainant.
In Hobby v. Georgia Power Co., ARB No. 98-166, ALJ No. 1990-ERA-30 (ARB Feb. 9, 2001), Respondent presented a study of employment opportunities, and Complainant presented several witnesses to counter employer's study. The ARB agreed with the ALJ's findings that Respondent could not meet its burden merely by pointing out that Complainant did not apply to every available employer. The ARB agreed with the ALJ that Respondent's study's premise that whistleblowing activity would be considered a positive trait in job applicants was incredible, and therefore cast doubt on the value of the researcher's research and testimony.
The ARB declined to follow Title VII authority indicating that if an employer proves that the employee has not made reasonable efforts to obtain work, it is not necessary for the employer to also establish the availability of substantially comparable work, distinguishing those cases on the ground that Title VII is designed primarily to vindicate private rights rather than promote the public health and safety enforcement goal of the ERA whistleblower provisions, and noting that one legal scholar has questioned this alternative approach for proving a failure to mitigate damages.
In regard to whether Complainant used reasonable diligence, the ARB thoroughly reviewed Complainant's job search efforts, noting that Complainant had sought enforcement of the Secretary's 1995 merits decision in federal court, and found that this was not a case where the complainant abandoned his connection to the job market. The ARB noted that Complainant's job search had been considerably complicated by his abrupt termination from a senior position.
[Nuclear & Environmental Digest XVI C 2 b v]
MITIGATION; WHEN A COMPLAINANT MUST "LOWER HIS OR HER SIGHTS"
In Hobby v. Georgia Power Co., ARB No. 98-166, ALJ No. 1990-ERA-30 (ARB Feb. 9, 2001), Respondent argued that back pay should be reduced because Complainant waited too long to "lower his sights" and seek positions outside the nuclear power industry. The ARB noted that a complainant who is unsuccessful in his or her search for an equivalent job must eventually seek employment in another field, but that where Complainant had spent many years working his way "up the ladder" into senior corporate management positions, he could not have been expected precipitously to "go into another line of work, accept a demotion, or take a demeaning position." Thus, in the case sub judice it was perfectly reasonable for Complainant to keep searching for an equivalent for an extended period.
Back pay is offset by interim earnings, but not by unemployment
compensation. There is no offset for
interim earnings, however, for positions the complainant would
have been able to hold even if the
respondent had not discriminated against the complainant.
Sprague v. American Nuclear
Resources, Inc., 92-ERA-37 (Sec'y Dec. 1, 1994)
(evidence
showed that the Complainant could
have done "odds and ends" jobs because of the periodic
work schedule if the position held
with the Respondent; employees worked for several weeks, followed
by several weeks of lay off).
[Nuclear & Environmental Digest XVI C 2 c i]
RECONSIDERATION; BACK PAY; EVIDENCE THAT COMPLAINANT OBTAINED
A NEW JOB; ORDER TO PRODUCE INCOME TAX RETURNS
In Jones v. EG & G Defense Materials,
Inc., 1995-CAA-3 (ARB Dec. 24, 1998), the ARB amended a back pay order on
reconsideration to permit the deduction of subsequent earnings where Respondent presented
evidence that Complainant had obtained a new job. The ARB ordered that Complainant produce
copies of his federal income tax returns for the calculation.
[N/E Digest XVI C 2 c i]
BACK PAY; DEDUCTION OF OTHER SETTLEMENT AMOUNTS
In Saporito v. Florida Power & Light Co., 89-ERA-7 and 17 (ALJ Mar.
12, 1997), the ALJ considered what amounts, if any, could be deducted from a back pay award
for settlements of other whistleblower cases. The ALJ accepted Respondent's argument that
amounts designated in settlement agreements as back pay awards should be deducted from a
back pay award, but rejected the contention that front pay awards should be similarly deducted.
In addition, where Complainant did not have a current job, but described himself as an
"investor", the ALJ accepted Respondent's contention that capital gains and
dividends received by Complainant from his investments should also be deducted from a back
pay award.
[Nuclear & Environmental Digest XVI C 2 c i]
BACK WAGES; OFFSET FOR INTERIM EARNINGS; CREDIT DURING QUARTER EARNED FOR PURPOSES OF COMPUTATION OF INTEREST
In Hobby v. Georgia Power Co., ARB No. 98-166, ALJ No. 1990-ERA-30 (ARB Feb. 9, 2001), the ARB held that "[f]or purposes of computing and compounding interest, all interim earnings shall be credited against Georgia Power's gross back pay obligation during the quarter in which the interim earnings were earned." Slip op. at 42 (footnote omitted).
BACKPAY; CALCULATION OF INTERIM EARNINGS; USE OF RATIO TO
APPROXIMATE EARNINGS DURING PART OF YEAR
[N/E Digest XVI C 2 c i]
In Artrip v. Ebasco Services, Inc.,
89-ERA-23 (ARB Sept. 27, 1996),
Complainant's interim earnings were based on his income tax returns, which did not reflect the
precise amount he would have earned during the relevant ten month period. The Board indicated
that the ALJ's method of multiplying Complainant's yearly earnings by the decimal .833 (the
ratio
of ten months to twelve months) to approximate the interim earnings was reasonable.
DAMAGES; INTERIM EARNINGS; DUTY TO MITIGATE
[N/E DIGEST XVI C 2 c i]
Mitigation of damages by seeking suitable employment is a duty of victims of
employment discrimination. Interim earnings or an amount earnable with reasonable diligence
are reductions to a back pay award. A complainant may be "expected to check want ads,
register with employment agencies, and discuss potential opportunities with friends and
acquaintances." Doyle v. Hydro Nuclear
Services, 89-ERA-22 (ARB Sept. 6, 1996), quoting Helbing v. Unclaimed
Salvage and Freight Co., Inc., 489 F.Supp. 956, 963 (E.D. Pa. 1989), quoting Sprogis v.
United Air Lines, 517 F.2d 387, 392 (7th Cir. 1975).
Although Complainant in Doyle only earned $3000 in six years, the
Board found that he made diligent efforts to secure employment where he could not find
employment in the nuclear industry due to the discrimination, and where his psychological state
made it difficult for him to find and keep jobs in other fields. A psychologist's testimony about
post-traumatic stress was unrefuted, and it was understandable that Complainant did not have
great success in finding alternative employment. Employer could deduct all amounts
Complainant earned in interim employment through the date of the final judgment.
XVI C 2 c i Interim earnings
Interim earnings at a replacement job are deducted from back pay
awards. Williams v. TIW Fabrication & Machining,
Inc., 88-SWD-3 (Sec'y June 24, 1992).
XVI. C. 2. c. i. Deduction of interim earnings in the
calculation of back pay award
In Willy v. The Coastal Corp., 85-CAA-1 (Sec'y June
1, 1994), the Secretary found that the Complainant's back pay
should be offset by any interim earnings, and his right to back
pay may have been cut off by his actions after he was fired by
Respondent, under principles adopted by the Secretary in
whistleblower and other antidiscrimination cases.
See, e.g., Williams v. TIW Fabrication and
Machining, Inc., Case No. 88-SWD-3, Sec. Dec. Jun. 24,
1992, slip op. at 12-15; Office of Federal
Contract Compliance Programs v. Washington Metropolitan Area
Transit Authority, Case No. 84-OFC-8, Aug. 23, 1989,
slip op. at 3-4, 5-6, 8-9, rev'd on other grounds,
Washington Metro. Area Transit Auth. v. DeArment, 55
Empl. Prac. Dec. (CCH) 40,507 (D.D.C. 1991); Nelson v.
Walker Freight Lines, Inc., Case No. 87-STA-24, Sec.
Dec. Jan. 15, 1988, slip op. at 4-5; Cram v. Pullman-
Higgins Co., Case No. 84-ERA-17, Sec. Dec. Jan. 14,
1985, slip op. at 2-3.
Specifically, the calculation of back pay was to be based on the
difference between what Complainant would have earned if he had
continued to be employed by Respondent and the amount he earned
or with reasonable diligence could have earned from the date of
discharge to the date of his discharge from a subsequent
employer.
Since Complainant did not leave the subsequent employer because
the work was not comparable to the environmental work he was
doing for Respondent, but for "paying insufficient attention
to his duties," the Secretary found that his right to back
pay was cut off at the time he stopped working for the subsequent
employer. SeeOFCCP v. WMATA, slip op. at 8-9, and
cases cited therein.
XVI.C.2.c.i. Interim earnings from collateral source
In Marcus v. United States Environmental Protection
Agency, 92-TSC-5 (Sec'y Sept. 27, 1994), the Secretary
remanded the case to the ALJ for findings of fact on damages and
losses, and specifically on whether Respondent may deduct
Complainant's outside consulting fees from the back pay award as
"interim earnings" or whether these fees represent
income from a collateral source which may not be deducted.
The Secretary noted that deductible "interim earnings"
are earnings that a complainant could not have earned if he had
not suffered unlawful discrimination. In Marcus,
Complainant alleged that he would have earned consulting fees in
addition to earning his full salary had he not been discharged.
As demonstrated in Schlei & Grossman's Employment
Discrimination Law (2d ed. Supp. 1989) at 537 n.71, the
distinction becomes apparent upon comparing, for example,
Whatley v. Skaggs Cos., 707 F.2d 1129 (10th
Cir.), cert. denied, 464 U.S. 938 (1983), where the
prior position would have precluded moonlighting, and
Nash v. City of Houston Civic Center, 805 F.
Supp. 1030, aff'd in part and rev'd in part, 800 F.2d
491 (5th Cir 1986), where the discharged employee's earnings
from running his own business were adjudged interim earnings
to be deducted from the back pay award, with
Hawks v. Ingersoll Johnson Steel Co., 38 Fair
Empl. Prac. Cas. (BNA) 93 (S.D. Ind. 1984), where the
earnings from a part-time job held before and after the
employee's discharge were not deducted from his back pay
award because the income was received regardless of the
employee's employment status with the company,
Lilly v. City of Beckley, W. Va., 615 F. Supp.
137 (S.D. W. Va. 1985), aff'd, 797 F.2d 191 (4th Cir.
1986), where a job applicant's earnings from secondary
employment were not offset from the back pay award because
he established that the earnings could have been maintained
had he been hired, and
Behlar v. Smith, 719 F.2d 950 (8th Cir. 1983),
cert. denied, 466 U.S. 958 (1984), where monies
earned by female faculty members during the summer and in
evenings during the school term were not offset against
their back pay awards.
XVI C 2 c i Back pay; deductions
Interim earnings in replacement employment should be deducted
from a back pay award. Blackburn v. Metric Constructors,
Inc., 86-ERA-4 (Sec'y Oct. 30, 1991).
In Rexroat v. City of New Albany, Indiana, 85-WPC-3
(ALJ Apr. 20, 1987), settled while on review before the
Secretary, (Sec'y June 29, 1989), after the Complainant
demonstrated that he was discriminatorily dismissed from his
employment because of a protected activity, he was reinstated to
his former position with full back pay, interest, and fringe
benefits and was reimbursed for all his costs and expenses
including reasonable attorney fees. During the time Complanant
was unemployed, he collected $2574 in unemployment. The ALJ
detemined that unemployment benefits paid to Complainant were not
earnings but were moneys received from a collateral source which
were not deductable from Complainant's award of damages. In
making his determination, the ALJ relied upon on National
Labor Relations Board v. Gullett Gin Co., 34 U.S. 361, 71
S.Ct. 337 (1951), in which the Court determined that the NLRB was
correct in refusing to deduct from back-pay, sums paid to
discriminatorily discharged emloyees as unemployment compensation
by a state agency.
[Nuclear & Environmental Digest XVI C 2 c ii]
BACK PAY; SEVERANCE PAY IS DEDUCTED
Back pay awards should be reduced by the amount received by the complainant as
severance pay. Jones v. EG & G Defense
Materials, Inc.,1995-CAA-3, slip
op. at 19 (ARB Sept. 29, 1998).
[N/E Digest XVI C 2 c ii]
BACK PAY; UNEMPLOYMENT BENEFITS ARE NOT DEDUCTIBLE
Unemployment benefits are not deductible from gross back pay. Keene v. Ebasco
Constructors, Inc., 95-ERA-4 (ARB Feb. 19, 1997), citing Artrip v. Ebasco
Services, Inc., 89-ERA-23, slip op. at 4-5 (ARB Sept. 27, 1996).
BACK PAY; SEVERANCE PAY AS OFFSET
[N/E Digest XVI C 2 c ii]
Severance pay offsets the amount of a back pay award.
Creekmore v. ABB Power Systems Energy Services,
Inc., 93-ERA-24 (Dep. Sec'y Feb. 14, 1996).
XVI C 2 c ii Stipulation of nonentitlement to
unemployment benefits
In Nichols v. Bechtel Construction, Inc., 87-ERA-44
(Sec'y Nov. 18, 1993), Complainant stipulated that the amount of
unemployment compensation benefits he received would be deducted
from the back pay award. Noting that the Secretary normally does
not deduct unemployment compensation from a back pay award, the
Secretary nonetheless found that the stipulation was not so
contrary to public policy as to warrant nonenforcement in the
instant case. The Secretary noted that absence a provision in a
stipulation that might be contrary to public policy, a
stipulation is like a settlement or a contract and the parties
should be held to their bargain.
Goldstein v. Ebasco Constructors, Inc., 86-ERA-36
(Sec'y Apr. 7, 1992), rev'd on other grounds, Ebasco
Constructors, Inc. v. Martin, No. 92-4576 (5th Cir. Feb.
19, 1993)
See also Graefenhain v. Pabst Brewing Co., 870
F.2d 1198, 1206 (7th Cir. 1989) (stipulation binding unless
relief from stipulation necessary to prevent manifest
injustice, or stipulation entered into through inadvertence
or based on erroneous view of the facts or law).
XVI C 2 c ii Unemployment compensation
Unemployment compensation is not deducted from a back pay award.
Williams v. TIW Fabrication & Machining, Inc.,
88-SWD-3 (Sec'y June 24, 1992) (citing Enstrom v. Beech
Aircraft Corp., 712 F. Supp. 841, 853 (D. Kan. 1989)
("[a] statutory benefit to plaintiff should not reduce the
judgment against defendant from its wrongful conduct")).
Back pay liability does not cease on the date that a state agency
rejects a complainant's claim for unemployment compensation on
the grounds that the complainant was self-employed and not
seeking a job. Even if the complainant were employed in a
similar job at another power plant, he would be entitled to back
pay if he were earning less than he did with the respondent.
Only payment of the difference would make such a complainant
whole.
Cram v. Pullman-Higgins Co., 84-ERA-17 (Sec'y Jan.
14, 1985).
BACK PAY; DEDUCTION FOR SELF-EMPLOYMENT PENSION CONTRIBUTIONS
[N/E Digest XVI C 2 c iii]
Pension income received by a complainant during a back pay period from another source,
as opposed to earnings from alternative interim employment, are not deducted from back pay
awards. Artrip v. Ebasco Services,
Inc., 89-ERA-23 (ARB Sept. 27, 1996).
In Artrip, however, the Board agreed with Respondent that a sum earned by
Complainant during the relevant period, but allotted by him to self-employment pension plan,
should be deducted. The Board stated: "This ... is not a case in which the complainant
received pension benefits as assistance during the back pay period based on entitled [sic] in the
thermolag job during the same period."
A lump sum permanent disability settlement is not deductible from
a back pay award in the absence of proof that the complainant's
workers' compensation benefits were designed as compensation for
lost wages for the particular back pay period at issue.
Although workers' compensation awards that are identifiable as
compensation for lost wages during a back pay period may be
deducted from a back pay award, an award in reparation of
permanent physical injury is not compensation for loss of wages
during a particular period and is not deductible. This
distinction has been explained as follows:
"temporary disability payments are a substitute for
lost wages during the temporary disability period, while
permanent disability is for permanent bodily impairment and
is designed to indemnify for the injury employee's
impairment of future earning capacity or diminished ability
to compete in the open labor market." Canova v.
NLRB, 708 F.2d 1498 (9th Cir. 1983), 1504, quoting
Russell v. Bankers Life Co., 120 Cal. Rptr. 627, 634
(1975).
Williams v. TIW Fabrication & Machining, Inc.,
88-SWD-3 (Sec'y June 24, 1992).
[Nuclear & Environmental Digest XVI C 2 c iv]
BACK PAY; DISABILITY RETIREMENT PAYMENTS ARE NOT DEDUCTED
In Berkman v. U.S. Coast Guard Academy, ARB No. 98-056, ALJ No.
1997-CAA-2 and 9 (ARB Feb. 29, 2000), the ARB held that disability retirement payments are
not deducted from a back pay award.
BACK PAY; PERIOD COMPLAINANT COULD NOT WORK DUE TO JOB
RELATED INJURY
[N/E Digest XVI C 2 c iv]
In Smith v. Littenberg, 92-ERA-52 (Sec'y Sept.
6, 1995), the Complainant was receiving temporary total
disability between the period of his discharge by the Respondents
and his starting a new job. The disability was unrelated to the
employment discrimination. The Secretary held that even though
the Complainant would not have been able to work during the back
pay period, "[a]s ERA violators ... Respondents should not
receive the benefit of owing no back pay due to [the
Complainant's] work place injury." Slip op. at 5. Thus,
Respondents were ordered to pay the amount of salary that is
above the payments for temporary total disability; the amount
paid for temporary total disability was compensation for lost
wages, and therefore deductible from the back pay award. The
Secretary noted, however, that the amount Complainant received as
settlement for permanent partial disability was not deductible
from the back pay award.
Evidence that the complainant failed to mitigate damages will
reduce the amount of the back pay owed.
The respondent has the burden of establishing that the back pay
award should be reduced because the
complainant did not exercise diligence in seeking and obtaining
other employment. West v. Systems Applications International,
94-CAA-15 (Sec'y Apr. 19, 1995).
[Nuclear & Environmental Digest XVI C 2 c v]
BACK PAY; MITIGATION OF DAMAGES; BURDEN OF PROOF ON RESPONDENT
In Timmons v. Franklin Electric
Coop., 1997-SWD-2 (ARB Dec. 1, 1998), the ALJ found that Complainant could
have found alternative work within eight weeks of his termination from Respondent's
employment had he exercised reasonable diligence. The ARB, however, found that the ALJ did
not apply the correct legal standard because the burden of proof on mitigation is on Respondent.
Complainant had put on evidence indicating that he had sought alternative employment (through
union locals), accepted suitable employment when it was presented (self-employment in logging
and sawmills), and remained available for employment even while engaged in building his house
("... if a good job had come along where I could make money, I would have took the job
and hired someone to finish my house."). Respondent failed to counter this evidence,
which the ARB found to be a serious omission. The ARB distinguished this scenario from a case
where the complainant makes no effort to obtain suitable employment during the back pay
period.
[Nuclear & Environmental Digest XVI C 2 c v]
MITIGATION; REASONABLE EFFORTS; REASONABLENESS OF SELF-
EMPLOYMENT
Victims of employment discrimination have the duty to mitigate damages by seeking
suitable employment. Reasonable efforts to find employment include checking want ads,
registering with the state employment agency, and using personal contacts. In Jones v.
EG & G Defense Materials, Inc.,1995-CAA-3 (ARB Sept. 29, 1998), Respondent
contended that Complainant failed to mitigate damages when, after too short a job search, he
unreasonably chose to gamble on self employment (which resulted in no salary or income for
two calendar years -- up to the time of the close of the record before the ALJ). The ARB quoted
Smith v. Great American Restaurants, Inc., 969 F.2d 430, 438 (7th Cir. 1992), for the
proposition that "self employment can constitute employment for purposes of mitigating
damages, as long as the self employment was a reasonable alternative to finding other
comparable employment." The ARB indicated that the respondent has the burden of
showing that a complainant's self employment was an unreasonable withdrawal from the job
market, and found that Respondent had failed to do so on the evidence of record.
[N/E Digest XVI C 2 c v]
MITIGATION OF DAMAGES; SELF-EMPLOYMENT NOT PRODUCING INCOME
In Hoffman v. Bossert,
94-CAA-4 (ARB Jan. 22, 1997) , Complainant
became self-employed as a partner in a landscaping business subsequent to his discriminatory
lay-off by Respondent, and stated that he did not earn any business income, other wages, or
salaries
between that date and the date of his affidavit. The Board considered whether self-employment
cut off Complainant's entitlement to back pay. The Board wrote:
In discrimination cases, although a complainant has a duty to exercise
reasonable diligence in attempting to mitigate damages by finding comparable work, the
defendant "has the burden of proving that the plaintiff has failed to discharge its
duty." Smith v. Great American Restaurants, Inc., 969 F.2d 430, 438 (7th
Cir. 1992). A court has noted that "[s]elf employment can constitute employment
for purposes of mitigating damages, as long as the self-employment was a reasonable
alternative to finding other comparable employment." Id.
This record lacks sufficient evidence to determine whether Hoffman's
self-employment was a reasonable alternative to finding other employment. Respondent Boss
had the burden to establish that Hoffman's self-employment constituted a failure to
mitigate damages, but introduced no evidence on the subject. Therefore, employing the
applicable burden of proof, we find that Boss has not established that Hoffman failed to
discharge his duty of mitigation when he became self-employed. Accordingly, the back
pay continues to accrue... [until Complainant begins to earn business income].
DAMAGES; INTERIM EARNINGS; DUTY TO MITIGATE
[N/E DIGEST XVI C 2 c v]
Mitigation of damages by seeking suitable employment is a duty of victims of
employment discrimination. Interim earnings or an amount earnable with reasonable diligence
are reductions to a back pay award. A complainant may be "expected to check want ads,
register with employment agencies, and discuss potential opportunities with friends and
acquaintances." Doyle v. Hydro Nuclear
Services, 89-ERA-22 (ARB Sept. 6, 1996), quoting Helbing v. Unclaimed
Salvage and Freight Co., Inc., 489 F.Supp. 956, 963 (E.D. Pa. 1989), quoting Sprogis v.
United Air Lines, 517 F.2d 387, 392 (7th Cir. 1975).
Although Complainant in Doyle only earned $3000 in six years, the
Board found that he made diligent efforts to secure employment where he could not find
employment in the nuclear industry due to the discrimination, and where his psychological state
made it difficult for him to find and keep jobs in other fields. A psychologist's testimony about
post-traumatic stress was unrefuted, and it was understandable that Complainant did not have
great success in finding alternative employment. Employer could deduct all amounts
Complainant earned in interim employment through the date of the final judgment.
DAMAGES; FAILURE TO MITIGATE
[N/E Digest XVI C 2 c v]
In Creekmore v. ABB Power Systems Energy Services,
Inc., 93-ERA-24 (Dep. Sec'y Feb. 14, 1996), the
Complainant was scheduled for an interview with another
company owned by the Respondent, but declined the interview
after he was offered another job and had to accept or reject
the offer prior to the date of the interview with
Respondent's company. The other job paid less. The Deputy
Secretary rejected the Respondent's contention that this
constituted a failure to mitigate, quoting Ford v.
Nicks, 866 F.2d 865, 873 (6th Cir. 1989) (citing
Rasimus v. Michigan Dept. of Mental Health, 714 F.2d
614, 624 (6th Cir. 1983), cert. denied, 466 U.S. 950
(1984)): "An employee is not required to go to heroic
lengths in attempting to mitigate his damages, but only to
take reasonable steps to do so."
XVI C 2 c v Complainant's quitting of job or accepting of
lower paying job as a matter of principle; effect
on damages
Where an employee is demoted, and rather than accept the demotion
decides to quit, unless constructively discharged, the employee
is not eligible for post-resignation damages and back pay or for
reinstatement. The employee's decision to quit, however, goes
solely to the issue of damages and not to whether there was
discrimination.
Similarly, where the employee accepts a lower paying job that the
one initially offered, that he further damaged himself does not
eliminate the discrimination, although it would limit his
recovery. Harrison v. Stone & Webster Engineering
Group, 93-ERA-44 (Sec'y Aug. 22, 1995) (Complainant, as a
matter of principle, took a journeyman position rather than take
a foreman position from a current foreman; in his order, the
Secretary limited the back pay award to the difference between
the Complainant's lead foreman and a regular foreman's wages).
In Doyle v. Hydro Nuclear
Services, ARB Nos. 99-041, 99-042, and 00-012, ALJ No. 1989-ERA-22 (ARB
May 17, 2000), the ARB held that "a complainant is entitled to an enlargement of the back
pay award to reflect the adverse tax consequences of receiving a lump sum payment that
represents many years of back pay." The ARB, however, also held that "the plaintiff
the burden of providing credible evidence of the calculation of the difference in tax payments
between receiving back pay as a lump sum and receiving the pay in the various years at issue. . . .
[A] failure to provide evidence on the tax enhancement calculation generally is held against the
plaintiff who seeks the enhancement." In Doyle, the ARB concluded
that Complainant had not met this burden, and therefore denied his requested enhancement of
back pay to allow for tax consequences.
[Nuclear & Environmental Digest XVI C 2 c vi]
DAMAGES; TAX PENALTY FOR EARLY DISTRIBUTION OF IRA ACCOUNT
In Hobby v. Georgia Power Co., ARB No. 98-166, ALJ No. 1990-ERA-30 (ARB Feb. 9, 2001), Respondent was required to reimburse Complainant for tax penalties resulting from early distribution of Complainant's stock and IRA account, plus interest.
In Pillow v. Bechtel Construction, Inc., 87-ERA-35
(Sec'y July 19, 1993), the Secretary found that Complainant was
entitled to pay as a night shift worker for the period from his
lay off to the date he would have been laid off absent
discrimination -- including overtime pay. In
Pillow, Complainant had been transferred from night
shift to day shift in part based on discriminatory reasons, and
thereby lost eligibility for certain overtime work.
[Nuclear & Environmental Whistleblower Digest XVI C 2 d]
BACKPAY; COMPLAINANT SHOULD NOT BE PENALIZED FOR OVERTIME EARNINGS
A backpay award should not be reduced for an employee who is paid by the hour and works overtime. Thus, in Moder v. Village of Jackson, Wisconsin, ARB Nos. 01-095 and 02-039, ALJ No. 2000-WPC-5 (ARB June 30, 2003), the ALJ erred in calculating backpay based on a memorandum showing Complainant's actual earnings for the relevant period and the salary of the position for which Complainant was illegally passed over, where Complainant's actual earnings included overtime pay. Rather, the ALJ should have compared the base pay for both positions.
[Nuclear & Environmental Digest XVI C 2 d]
BACK WAGES; OFFSET INCLUDES OVERTIME
In Hobby v. Georgia Power Co., ARB No. 98-166, ALJ No. 1990-ERA-30 (ARB Feb. 9, 2001), the ARB rejected Complainant's argument that work performed for a second company after regular working hours for his primary employer should be excluded from the back pay offset calculation. The Board held that "[b]ecause these monies were nevertheless "interim earnings," we include this amount in the interim earnings calculation."
DAMAGES; HYPOTHETICAL EMPLOYMENT HISTORY; PROMOTIONS
[N/E DIGEST XVI C 2 d]
Back pay should include a promotion to which a complainant was entitled. In Doyle v. Hydro Nuclear Services,
89-ERA-22 (ARB Sept. 6, 1996), however, Complainant did not show that he was entitled to a
promotion to a health physics technician, and he was not entitled to pack pay based on a
"lost" promotion.
DAMAGES; HYPOTHETICAL EMPLOYMENT HISTORY; SALARY INCREASES
[N/E DIGEST XVI C 2 d]
Recognizing that back pay normally includes regular annual increases that an employee
would receive absent the discrimination, the Board found that Complainant was entitled to
receive back pay calculated according to the average hourly amount earned by similarly situated
employees in the nationwide nuclear industry in each year since his discrimination. Doyle v. Hydro Nuclear Services,
89-ERA-22 (ARB Sept. 6, 1996).
BACKPAY; ENTITLEMENT TO SALARY INCREASES [N/E Digest XVI C 2 d]
The calculation of backpay should include any salary
increases that reasonably would have occurred in the period
between the complainant's discharge and his or her reinstatement.
SeeMosbaugh v. Georgia Power Co., 91-ERA-1
and 11 (Sec'y Nov. 20, 1995).
XVI C 2 d. Calculation of overtime
Where there was evidence that at the time of layoff overtime was
common, it was appropriate for the ALJ to use months during which
the overtime was common to project an average monthly wage rather
than Complainant's entire work history. Nichols v. Bechtel
Construction, Inc., 87-ERA-44 (Sec'y Nov. 18, 1993).
The fact that the ERA does not expressly provide for interest on
back pay does not preclude it. Back pay awards are designed to
make whole the employees who has suffered economic loss as a
result of an employer's illegal discrimination. The assessment
of prejudgment interest is necessary to achieve this end.
Prejudgment interest on back wages recovered in litigation before
the Department of Labor is calculated, in accordance with 29
C.F.R. § 20.58(a), at the rate specified in the Internal
Revenue Code, 26 U.S.C. § 6621. The employer is not to be
relieved of interest on a back pay award because of the time
elapsed during adjudication of the complaint. See Palmer v.
Western Truck Manpower, Inc., 85-STA-16 (Sec'y Jan. 26, 1990)
(where employer has the use of money during the period of
litigation, employer is not unfairly prejudiced).
Blackburn v. Metric Constructors, Inc., 86-ERA-4
(Sec'y Oct. 30, 1991).
[Nuclear and Environmental Whistleblower Digest XVI C 2 e]
BACK PAY AND FRONT PAY; POST-JUDGMENT INTEREST
In Doyle v. Hydro Nuclear
Services, ARB Nos. 99-041, 99-042, and 00-012, ALJ No. 1989-ERA-22 (ARB
May 17, 2000), the ARB observed that "[t]he usual interest rate employed on back pay
awards under ... whistleblower provisions is the interest rate for underpayment of federal taxes,
set forth at 26 U.S.C. §6621(a)(2) (short-term Federal rate plus three percentage
points)." Id. @ 20 (citations omitted). The ARB held that in whistleblower cases,
it awards the same rate of interest on back pay awards, both pre- and post-judgment that is,
compounded and posted quarterly.
[Nuclear and Environmental Whistleblower Digest XVI C 2 e]
BACK PAY AND FRONT PAY; INTEREST; PREJUDGMENT COMPOUNDED
QUARTERLY AT RATE DETERMINED UNDER 26 U.S.C. §6621(b)(3) PLUS THREE
PERCENTAGE POINTS
In Doyle v. Hydro Nuclear
Services, ARB Nos. 99-041, 99-042, and 00-012, ALJ No. 1989-ERA-22 (ARB
May 17, 2000), the ARB wrote: "In light of the remedial nature of the ERA's employee
protection provision and the 'make whole' goal of back pay, we hold that the prejudgment interest
on back pay ordinarily shall be compound interest. Our reasoning applies equally to back pay
awards under analogous employee protection provisions of the other federal statutes under which
we issue administratively final decisions [the CAA, CERCLA, FWPCA, SDWA, SWDA, STAA
and TSCA]. Absent any unusual circumstance, we will award compound interest on back pay in
cases arising under all of these employee protection provisions." Id. @ 18
(footnote omitted). The ARB held that the compounding of interest should be quarterly. The
ARB continued:
...As provided by the ALJ and the parties' stipulation, the interest rate is that
charged on the underpayment of Federal income taxes, which consists of the
Federal short-term rate determined under 26 U.S.C. §6621(b)(3) plus three
percentage points. See 26 U.S.C. §6621(a)(2); FRD&O at 2; 1999
Stip. at ¶4.
The Federal short-term interest rate to be used is the
so-called "applicable federal rate" (AFR) for a quarterly period of
compounding. See, e.g., Rev. Rul. 2000-23, Table 1.
The ARB also applied this ruling to prejudgment interest on a front pay award.
[For additional details on how the interest calculation is made, see the decision @ 18-19]
[Nuclear & Environmental Digest XVI C 2 e]
DAMAGES; POST-JUDGMENT INTEREST DOES NOT AUTOMATICALLY
ACCRUE
In Pillow v. Bechtel Construction, Inc., No. 98-4217 (11th Cir. Jan. 28,
2000) (case below ARB No. 97-040, ALJ No. 1987-ERA-35), an ERA whistleblower case, the
court rejected plaintiffs' argument that post-award interest accrues as a matter of law on agency
awards.
[N/E Digest XVI C 2 e]
PREJUDGMENT INTEREST; COMPOUNDING
In Willy v. The Coastal
Corp., 85-CAA-1 (ALJ May 8, 1997), Complainant contended that pre-judgment
interest should be compounded either yearly or quarterly based on OFCCP v. WMATA,
84-OFC-8 (Ass't Sec'y Aug. 23, 1989). The ALJ recognized that WMATA contained
language that could be interpreted as approval of yearly compounding, but concluded based on
the context of the decision as a whole, as well as subsequent decisions in the matter WMATA,
84-OFC-8 (Ass't Sec'y Nov. 17, 1989) and WMATA, 84-OFC-8 (Ass't Sec'y Nov. 14, 1990), that
there should be no compounding of interest.
XVI C 2 e Interest on back pay
The fact that the ERA does not expressly provide for interest on
back pay does not preclude it. Items not expressly provided for
by the Act are not necessarily precluded.
Blackburn v. Metric Constructors, Inc., 86-ERA-4
(Sec'y Oct. 30, 1991).
XVI C 2 e 26 U.S.C. § 6621
Interest on a back pay award under the ERA is the rate specified
in section 6621 of the Internal Revenue Code, 26 U.S.C. §
6621 (1988), rather than the rate specified in 28 U.S.C. §
1961.
Beck v. Daniel Construction Co., 86-ERA-26 (Sec'y
Aug. 3, 1993).
XVI C 2 e Interest based on 26 U.S.C. § 6621
Interest on a back pay award should be at the rate provided for
in 26 U.S.C. § 6621. According to the Secretary:
Department of Labor regulations implementing Section 3
of the Debt Collection Act of 1982, 31 U.S.C. § 3711(f)
(1982), set forth the rate of interest chargeable on debts
owed to the Department. Under 29 C.F.R. § 20.58(a)
(1988), "[t]he rate of interest prescribed in section
6621 of the Internal Revenue Code shall be sought for
backwages recovered in litigation by the Department."
While this regulation, by its terms, is not controlling on
the question of appropriate prejudgment interest in this
case, adopting an approach consistent with the regulation is
reasonable. Additional support for this method derives from
analogous employment discrimination cases. [citations
omitted].
Wells v. Kansas Gas & Electric Co., 85-ERA-22
(Sec'y Mar. 21, 1991).
XVI C 2 e Interest on back pay to date of
compliance
Interest on a back pay award shall be paid at the rate specified
in 26 U.S.C. § 6621 (interest on
underpayment of Federal income tax) until the date of compliance
with the Secretary's order.
Sprague v. American Nuclear Resources, Inc.,
92-ERA-37 (Sec'y Dec. 1, 1994).
In Blake v. Hatfield Electric Co., 87-ERA-4 (Sec'y
Jan. 22, 1992), the Secretary found that the record supported the
ALJ's recommendation that the respondent be ordered to cross-
certify the complainant in additional inspection procedures. The
complainant was entitled to be cross-certified, several
inspectors were cross certified after the complainant's layoff,
and the layoff was found to be in violation of the ERA. Hence,
the respondent had the burden of proving that the complainant
would not have received this training, and did not carry that
burden. Cf. Alexander v. Menlo Park, 787 F.2d 1371, 1375
(9th Cir. 1986), cert. denied, 479 U.S. 1032 (1987).
The Secretary noted, however, that if the respondent on remand
could show that the complainant would have been laid off anyway
shortly after his improper layoff, the cross-certification point
may be moot.
[Nuclear and Environmental Digest XVI C 3] REMEDIES; SUBSTITUTING CASH VALUE FOR STOCK OPTIONS ORDERED RESTORED
In Hobby v. Georgia Power Co., 1:01-CV-01407 (N.D.Ga. Feb. 15, 2006) (case below ARB No. 98-166, ALJ No. 1990-ERA-30), following extended proceedings, the Complainant was ordered reinstated and granted other remedies, one of which included restoration of stock options. Following reinstatement, the Respondent concluded that it could not restore the stock options with strike prices at the relevant time periods because of a company policy against issuing discounted options. Thus, it decided to determine an economic value for the stock options and use that value for the restoration. The Complainant sought enforcement of the DOL order in federal district court. The court found that the Defendant had presented evidence to show why its decision to substitute a cash value for a missed stock option might be a reasonable business decision, absent a court order, but had failed "to support a finding that it was prohibited from issuing the discounted options where such restoration had been ordered as a remedy for discrimination." Slip op. at 13. The court recognized that extreme impracticability of performance may have the same effect as impossibility, but found that the Defendant had not established a question of fact as to such impracticability. Even if it was impossible, the Defendant had not presented sufficient evidence to create a question of fact that the method it used to establish the case value of missed options was sufficient to satisfy the requirement of the DOL order. The Defendant argued that the Complainant's proposed valuation, which was based on his holding the options until their expiration, would be artificially appreciated based on a self-serving and preposterous notion. The court, however, wrote that "[t]he injury that plaintiff suffers is the deprivation of his range of elective action." Slip op. at 14-15, quoting Haft v. Daft Group Corp., 877 F. Supp. 896, 902 (D.Del. 1995). The court granted summary judgment for the Complainant, and specified how the options were to be paid.
[Nuclear & Environmental Digest XVI C 3]
DAMAGES; LOST VACATION TIME; RESTORATION V. CASH VALUE
In Hobby v. Georgia Power Co., ARB No. 98-166, ALJ No. 1990-ERA-30 (ARB Feb. 9, 2001), the ARB adopted the standard of Palmer v. Western Truck Manpower, Inc., 1985-STA-16 (Sec'y June 26, 1990), vac'd on other grounds, Western Truck Manpower, Inc. v. United States Dep't of Labor, 943 F.2d 56 (9th Cir. 1991) (table), available at 1991 U.S. App. LEXIS 21675, for determining when a complainant is entitled to reimbursement for lost vacation time. A complainant is entitled to be paid for accrued vacation time he has lost as a result of the employer's discrimination; however, "[w]here it is the practice of the employer to pay an employee for vacation time not taken, it is equitable that a complainant receive both straight wages and vacation pay for the same period. Where, however, an employee must take his vacation or lose it, the addition of vacation pay to a back pay award of straight salary for the same period would compensate the complainant for more than he lost as a result of the employer's illegal discrimination." Hobby, slip op. at 36, quoting Palmer, supra., slip op. at 4-5.
Finding that Complainant's former employer permitted "carry-over" of unused leave, the ARB found that Complainant was entitled to the cash value of lost vacation until the time he is reinstated, plus interest. In making this ruling, the ARB in effect affirmed the ALJ's rejection of Complainant's request for the restoration of lost vacation time instead of the cash value of such time. The ALJ had found that restoration of lost vacation time was not consistent with the goal of reintegrating Complainant into Respondent's organization.
[Nuclear & Environmental Digest XVI C 3]
ABATEMENT OF VIOLATION; ASSIGNMENT TO DENIED POSITION
In Graf v. Wackenhut Services, L.L.C., 1998-ERA-37 (ALJ Dec. 16,
1999), pet. for review withdrawn Graf v. Wackenhut Services, L.L.C., ARB Nos. 00-
024 and 25 (ARB Feb. 16, 2000), the ALJ had concluded that Complainant had been denied a
reassignment to a more favorable program management position, despite having more seniority
than an otherwise equally qualified employee, and that Complainant's placement on extended
administrative leave in violation of the ERA had either directly or indirectly affected his ability to
receive the reassignment. As a remedy, the ALJ ordered Respondent to assign Complainant to a
similar position retroactive to the date of co-worker's reassignment. Since there was no evidence
that the new position involved a higher rate of pay, however, the ALJ did not order back pay.
[N/E Digest XVI C 3]
PAYMENT FOR CERTIFICATION COURSE; NOT PART OF BACK PAY AWARD
In Hoffman v. Bossert,
94-CAA-4 (ARB Jan. 22, 1997), the Board
found that Complainant was not entitled to $800 in back pay representing the amount
Respondent
paid for each worker who attended asbestos certification school; rather, the Board ordered
reinstatement and directed Respondent to pay for Complainant to attend the same course.
DAMAGES; PER DIEM PAYMENTS NOT AWARDED WERE COSTS NOT
INCURRED
[N/E DIGEST XVI C 3]
Back pay award did not include per diem payments where Complainant did not
incur the expenses of living away from home. Thus, those payments were not necessary to make
Complainant whole. Doyle v. Hydro Nuclear
Services, 89-ERA-22 (ARB Sept. 6, 1996) (Respondent had refused to hire
Complainant).
TERMS, CONDITIONS AND PRIVILEGES OF EMPLOYMENT
[N/E Digest XVI C 3]
In Creekmore v. ABB Power Systems Energy Services,
Inc., 93-ERA-24 (Dep. Sec'y Feb. 14, 1996), the
Deputy Secretary indicated that health, pension and other
related benefits are terms, conditions and privileges of
employment to which a successful ERA complainant is entitled
from the date of a discriminatory layoff until reinstatement
or declination. Such compensable damages include medical
expenses incurred because of termination of medical
benefits, including premiums for family medical coverage.
COMPENSATORY DAMAGES; MEDICAL COSTS AS PART OF BACK PAY
AWARD
[N/E Digest XVI C 3]
In Crow v. Noble Roman's, Inc., 95-CAA-8
(Sec'y Feb. 26, 1996), the ALJ recommended that the
Respondent pay as compensatory damages any reasonable
medical costs that would have been covered under the
Respondent's health insurance coverage. The Secretary
observed that the Respondent is required to pay those
medical costs as part of its obligation to reinstate the
Complainant to his former position, together with its
conditions and privileges, such as health insurance
coverage. The Secretary noted that should the Complainant
decline reinstatement, the Respondent would be required to
reimburse the Complainant for medical costs as part of the
back pay award.
XVI C 3 Direction that respondent return complainant to
permanent position she had been promised
Where the Complainant was working under a temporary promotion and
had been promised a permanent promotion, but the promotion was
rescinded after she engaged in whistleblowing activities and this
action was found to constitute a violation of the ERA, it was
within the Secretary's authority to order the Respondent to
return the Complainant to the position she had been working under
on a permanent basis. The Sixth Circuit held that a promise of
permanent employment at a certain level is a type of "terms,
conditions, and privileges" that may attach to a position.
See 42 U.S.C. § 5851(b)(2)(ii). The Detroit
Edison Co. v. Secretary, United States Dept. of Labor,
No. 91-3737, slip op. (6th Cir. Apr. 17, 1992) (per curiam)
(unpublished) (available at 1992 U.S. App. LEXIS 8280).
XVI C 3 Restoration of lost fringe benefits
The SWDA provides that upon finding a violation, the Secretary
shall order the party committing the violation to take
affirmative action to abate the violation, including, but not
limited to, rehiring or reinstatement of the employee with
compensation. 42 U.S.C. § 6971(b). Employees wrongfully
discharged under comparable discrimination provisions, e.g.,
Title VII, may recover an amount equal to wages the employee
would have earned but for the illegal discrimination, along with
lost fringe benefits such as medical and life insurance, vacation
pay, and pension benefits. The remedy is designed to restore
victims to the wage and employment positions they would have
occupied absent the unlawful discrimination. [citations
omitted].
In Williams v. TIW Fabrication & Machining,
Inc., 88-SWD-3 (Sec'y June 24, 1992), the Complainant was
covered by a group long-term disability insurance policy. The
Complainant became permanently disabled between his discharge in
May 1988 and the fall of 1989, when his disability was medically
confirmed. Had the Complainant not been unlawfully discharged,
he would have been subject to the insurance policy at the point
at which he became permanently disabled, and the Secretary
ordered the recovery an any benefits the Complainant would have
received by operation of the lost disability insurance.
See 29 C.F.R. § 24.6(b)(2).
XVI.C.3. Complainant's entitlement to unemployment
compensation benefits
In Tritt v. Fluor Constructors, Inc, 88-ERA-29 (ALJ
Aug. 29, 1994), the ALJ issued a recommended decision on remand
regarding back pay and whether the complainant was entitled to an
award of compensatory damages. The Complainant sought
unemployment compensation even though he had not applied for
such.
The ALJ concluded that unemployment compensation reimbursement is
not an element of damages where a complainant fails to exhaust
his administrative remedy of applying for benefits. Harris v.
Citibank, 1988 U.S. Dist. LEXIS 3354. An individual is not
entitled to judicial relief for a supposed or threatened injury
until the prescribed administrative remedy has been exhausted.
Cody v. Scott, 565 F.Supp. at 1031 (S.D.N.Y. 1983) quoting
Myers v. Bethlehem Shipbuilding Corp., 303 U.S. 41 (1938).
A mere possibility that an individual's claim may be rejected is
not grounds for allowing him to bypass administrative
requirements. Cody, supra.