In the Matter of

WILLIAM DAN DEFORD
    Complainant

    vs.

TENNESSEE VALLEY AUTHORITY
    Respondent

    William Dan DeFord filed a complaint alleging that the respondent discriminated against him by transferring him from one position to another because of activities to carry out the purposes of the Energy Reorganization Act of 1974, as amended, hereinafter referred to as the Act, in violation of Section 210 of that Act (92 Stat. 2951; 42 U.S.C. 5851).

    After an investigation, the Administrator of the Wage and Hour Division, Employment Standards Administration, U.S. Department of Labor, determined that DeFord had been discriminated against as prohibited by the Act. In his decision, dated October 9, 1980, the following relief was ordered;

1. Mr. William Dan DeFord is to be reinstated to either the M-5 Quality Assurance Engineering

Section supervisory position held by him prior to August 11, 1980, or Mr. DeFord is to be assigned to a comparable M-5 supervisory position which is acceptable to him.

2. Mr. DeFord is to be given written assurances that his conditions and privileges of employment will not be adversely affected as a result of his involvement in the U.S. Department of Labor's action under the Employee Protection Provisions of the Energy Reorganization Act (ERA), Public Law 95-601, Section 210, 42 USC 5851.

3. Mr. DeFord is to be placed on administrative leave (leave with full pay) which will cover the period from September 12, 1980, until such time that competent medical authorities determine that he is able to return to work.

4. Mr. DeFord is to be reimbursed for all medical and/or legal expenses incurred by him during the period from August 11, 1980, to date.

    Both the complainant and the respondent filed appeals from the Administrator's decision. At their request a hearing was held before an Administrative Law Judge, hereinafter referred to as the Judge. Thereafter, the Judge issued a recommended decision dated January 7, 1981, containing his recommended findings of facts, conclusions of law, and order. He found that the complainant was discriminated against by the respondent for acts protected by 42 U.S.C. 5851, in violation of that Section. He also found that medical expenses and damages for pain, suffering, mental anguish and injury to reputation resulting from discrimination prohibited by the Act are recoverable under 42 U.S.C. 5851. However, he found that the complainant had not offered sufficient evidence of the mental injury allegedly suf- ordered that the October 9, 1980 decision of the Administrator be affirmed. In addition to the relief provided in that decision, the Judge ordered that the respondent compensate the complainant in the amount of $50,000 for injury to his professional reputation.

    On the basis of the entire record, it is my conclusion that

the findings and conclusions in the Judge's recommended decision of January 7, 1981, with respect to whether DeFord was discriminated against in violation of the Act are supported by the evidence in the record and are proper, and I adopt them as my own. Accordingly, I find that the respondent, the Tennessee Valley Authority, violated Section 210 of the Act (42 U.S.C. 5851) by discriminating against the complainant because of activities protected by that Section.

    I do not agree with the Administrative Law Judge's conclusion that medical expenses and damages for pain, suffering, mental anguish, and injury to reputation resulting from discrimination prohibited by the Act are recoverable by a claimant under 42 U.S.C. 5851. I find that the Administrative Law Judge erred in holding that damages for these items may be recovered under that provision. Such items do not come within the intended scope of the remedy provided thereby. See the legislative history of 42 U.S.C. 5851, 1978 U.S. Code Cong. and Adm. News, p. 7303.

    Accordingly, the respondent, the Tennessee Valley Authority, is hereby ordered:

1) to reinstate William Dan DeFord to the supervisory position held by him immediately prior to August 11, 1980, at the same grade and pay, and under the same terms, conditions, and privileges of employment, or to assign him to a comparable position with comparable responsibilities at the same grade and pay;

2) to place him on administrative leave with full pay, rather than sick leave, from September 12, 1980 until such date as he is able to return to work;

3) to cease discriminating against him in any manner with respect to his compensation, terms, conditions, or privileges of employment because of actions by him to carry out the purposes of the Energy Reorganization Act of 1974, as amended, or because of his participation in this proceeding;

4) to pay him the aggregate amount of all costs

and expenses (including attorney fees) reasonably incurred by him in connection with this proceeding, as shall be determined by me on application together with supporting data, pursuant to 42 U.S.C. 5851 and 29 CFR 24.6(b)(3).

Dated at Washington, D.C.
this 4th day of March, 1981.

       RAYMOND J. DONOVAN
       Secretary of Labor