IX. Damages and remedies

D. Other relief

1. Cleansing of work record

2. Posting of notice of STAA obligations

3. Retroactive seniority and health benefits

4. Punitive damages

5. Blacklisting; cease & desist order

IX D 1 Cleansing of work record

In Self v. Carolina Freight Carriers Corp., 91-STA-25 (Sec'y Aug. 6, 1992), the Secretary ordered the respondent, inter alia, to expunge from its personnel files a warning letter and notice of suspension pertaining to the complainant's work refusal.

[STAA Digest IX D 1]
ORDER TO EXPUNGE; PERSONNEL RECORDS

In Michaud v. BSP Transport, Inc., 95-STA-29 (ARB Oct. 9, 1997), Respondent objected to the ALJ's order to expunge from Complainant's personnel records all derogatory or negative information contained therein relating to Complainant's protected activity and that protected activity's role in Complainant's termination. The objection was that the order was vague and Complainant had not identified any specific negative documents that should be removed.

The ARB affirmed the ALJ's order, finding it to be sufficiently clear. The ARB stated that it would not place the burden on Complainant to identify specifically the documents.

IX.D.1. STAA, absenteeism policies

Complainant does not forfeit his STAA protection as a condition of employment under an employer's rules. Where the respondent's absent
eeism policy advances the complainant on the disciplinary tract for refusing to work while impaired by the use of medication, then the complainant's refusal constitutes protected activity and the respondent must restore the complainant's work history to eliminate the effects of the adverse employment action. Curless v. Thomas Sysco Food Serv., 91-STA-12 (Sec'y Sept. 3, 1991).

IX.D.1. Cleansing of work record

In Judd v. Helena Truck Lines, Inc., 91-STA-48 (Sec'y Apr. 7, 1993), the Secretary dismissed the complaint based on the Complainant's failure to establish a prima facie case, but noted that he disagreed with the Respondent's contention that the complaint was moot because the Complainant had too many moving violations in his driving record to allow reinstatement. The Secretary noted that, if the Complainant had been successful in proving his case, he would have been entitled to expunction of the voluntary resignation from his record.

IX.D.1. Purging of employment records

In Shamel v. Mackey, 85-STA-3 (Sec'y Aug. 1, 1985), the Secretary ordered Respondent, in addition to paying compensatory damages and costs, to purge Complainant's employment records of any all references indicating that Complainant was discharged for cause.

IX. D. 1. Cleansing of work record
In Chapman v. T.O. Haas Tire Co., 94-STA-2 (Sec'y Aug. 3, 1994), the Secretary agreed with the ALJ's recommendation to order Respondent to modify the Complainant's final performance evaluation from grade F to grade C, with compensation commensurate therewith, as a measure to achieve the make-whole remedial purpose of the STAA.

IX. D. 1. Cleansing of work record

In Chapman v. T.O. Haas Tire Co., 94-STA-2 (Sec'y Aug. 3, 1994), the Secretary agreed with the ALJ's recommendation to order Respondent to modify the Complainant's final performance evaluation from grade F to grade C, with compensation commensurate therewith, as a measure to achieve the make-whole remedial purpose of the STAA.

IX.D.2. Respondent ordered to post notice of its obligation under STAA

In Park v. McLean Transportation Services, Inc., 91-STA-47 (ALJ Mar. 26, 1992), aff'd, 91-STA-47 (Sec'y June 15, 1992), the respondent was ordered to post a notice to all its employees acknowledging its obligations under the STAA. The Secretary affirmed the ALJ's decision without direct comment on this order.

[STAA Digest IX D 2]
AFFIRMATIVE RELIEF; POSTING OF NOTICE

In Scott v. Roadway Express, Inc., ARB No. 99-013, ALJ No. 1998-STA-8 (ARB July 28, 1999), the ARB ordered Respondent to post a notice at the facility where Complainant worked, which included the following language:

   Roadway's Akron facility has issued letters of warning to drivers who take one or more sick day(s) because their ability or alertness to drive is so impaired, or so likely to become impaired through fatigue, illness, or any other cause, as to make it unsafe for the drivers to begin or continue to operate the motor vehicle, but who have no personal vacation days, sick leave, or annual leave days available and do not qualify for family medical leave. This policy violated the Surface Transportation Assistance Act in this matter.

   The Surface Transportation Assistance Act does not preclude Roadway Express, Inc. from establishing mechanisms for assuring that a claimed illness is legitimate or serious enough to warrant a protected refusal to drive.

Id. at Appendix A (bold in original).

[STAA Digest IX D 2]
POSTING OF NOTICE OF DECISION

In Michaud v. BSP Transport, Inc., 95-STA-29 (ARB Oct. 9, 1997), Respondent objected to the ALJ's order to post written notice advising that the disciplinary action taken against Complainant had been expunged and that Complainant prevailed on this complaint. The objection was based on the passage of time since Complainant's 1993 discharge. The ARB affirmed the ALJ's order, finding that it was a standard remedy in discrimination cases that notifies a respondent's employees of the outcome of a case against their employer.

IX.D.3. Retroactive health benefits

In Dutile v. Tighe Trucking, Inc., 93-STA-31 (ALJ July 1, 1994), the ALJ concluded that it is now well-settled that the Complainant, in addition to his award of back pay and interest thereon, is also entitled to restoration of the pension contributions and the health and welfare benefits of which he has been deprived as a result of the discriminatory and illegal actions of the Respondent. In this regard, see Hufstetler v. Roadway Express, Inc., 85-STA-8 (Sec'y, Aug. 21, 1986) (dealing with the restoration and payment of all pension contributions and lost medical benefits).

In a motion for reconsideration, however, Dutile v. Tighe Trucking, Inc., 93-STA-31 (ALJ Aug. 6, 1994), Respondent presented evidence that Complainant was not entitled to those benefits as he rejected the Employer's medical insurance plan and as his rights had not vested in the Employer's retirement and pension plan. The ALJ concluded that the Complainant was entitled only to be restored to the status quo ante he enjoyed on his last days of employment and on that day he did not participate in the medical insurance program offered by the Employer and his rights in the retirement and pension plan had not vested.

[STAA Digest IX D 3]
COMPENSATORY DAMAGES; MEDICAL BENEFITS; RESPONDENT IS NOT REQUIRED TO PAY BOTH HEALTH INSURANCE PREMIUMS AND FAMILY MEDICAL EXPENSES EXCEPT COMPLAINANT'S OUT-OF-POCKET HEALTH CARE COSTS DIRECTLY ATTRIBUTABLE TO RESPONDENT'S WRONGFUL CONDUCT

In Michaud v. BSP Transport, Inc., 95-STA-29 (ARB Oct. 9, 1997), the ARB affirmed the ALJ's order that Respondent pay the value of health insurance premiums, but reversed his order that Respondent also pay for any health care cost incurred by Complainant or his family that would have been covered under Respondent's health insurance program, the ARB finding that Complainant would otherwise receive a double recovery. The ARB, however, affirmed that portion of the ALJ's order that Respondent pay health care costs associated with diagnosing and treating Complainant's depression (regardless of whether that care and treatment would have been covered by Respondent's health insurance program) personally incurred by Complainant because the ARB had found that Respondent's wrongful conduct caused the depression.

IX D 3 Pension benefits

The Respondent argued that the Complainant should not be entitled to pension benefits after the date that he began working for another company and became a participant in that pension plan. Because that plan does not vest for ten years, if Complainant were reinstated with the Respondent, his interest in the new employer's pension fund would end. The ALJ also held, however, that if the Complainant refuses reinstatement, the monies that would have been contributed on behalf of the Complainant had he not been unlawfully terminated shall be paid to the Complainant directly. Stone v. Nu-Car Carriers, Inc., 86-STA-16 (ALJ Dec. 28, 1988).

IX D 3 Relationship to reinstatement

The STAA expressly mandates that a complainant who established a meritorious case is entitled to immediate reinstatement to his or her "former position together with the compensation (including back pay), terms, conditions, and privileges of the complainant's employment * * *." 49 U.S.C. app. § 2305(c)(2)(B). Accordingly, such a complainant is entitled to retroactive seniority and retroactive health benefits status to the extent that it would affect current or future entitlement to benefits.

Hamilton v. Sharp Air Freight Service, Inc., 91- STA-49 (Sec'y July 24, 1992).

IX D 3 Health and welfare benefits

Where Complainant did not show that he purchased private insurance as a substitute for health and welfare benefits that would have been paid by Respondent to a Union fund during the period of discharge, the Secretary denied Complainant's request to be paid directly the amounts Respondent would have spent.

In addition, where Complainant did not show that he had any immediate loss as a result of Respondent's not paying health and welfare contributions, the Secretary declined to order Respondent to pay for benefits for the period of the discharge except to the extent that they affect current or future entitlement to benefits. Hufstetler v. Roadway Express, Inc., 85- STA-8 (Sec'y Aug. 21, 1986), overruled on other grounds, Roadway Express, Inc. v. Brock, 830 F.2d 179 (11th Cir. 1987).

IX D 3 Retroactive seniority & health benefits

Where a complainant has been discharged in violation of the STAA, the complainant is entitled to retroactive seniority and retroactive health benefits status to the extent that it would affect current or future entitlement to benefits. Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 399-400 (1982); Hufstetler v. Roadway Express, Inc., 85-STA-8 (Sec'y Aug. 21, 1986), slip op. at 49, aff'd sub nom., Roadway Express, Inc., v. Brock, 830 F.2d 179 (11th Cir. 1987).

Hamilton v. Sharp Air Freight Service, Inc., 91- STA-49 (Sec'y July 24, 1992).

IX D 4 Punitive damages not authorized

Punitive damages are not authorized under the STAA. 49 U.S.C. § 31105(b)(3)(A) and (B). Nolan v. AC Express, 92-STA-37 (Sec'y Jan. 17, 1995).

IX D 5 Where back pay or other damages not sought in blacklisting case, Secretary only orders Respondent to cease and desist

Where in a blacklisting case based on the Respondent's provision of information about a prior STAA complaint, the Complainant did not seek back pay or other damages, the Secretary only ordered the offending Respondent to cease and desist from providing any information about Complainant's prior complaint under the STAA in response to any employment reference inquiry. Earwood v. Dart Container Corp., 93-STA-16 (Sec'y Dec. 7, 1994).