Case No. 81-ERA-1

In the Matter of

William Dan DeFord
    Complainant

    v.

Tennessee Valley Authority
    Respondent

    In a decision of February 10, 1983, the United States Court of Appeals for the Sixth Circuit reviewed my decision of March 4, 1981, as well as my supplementary Orders of June 26, 1981 in this case. The Court of Appeals upheld my finding that the Tennessee Valley Authority (TVA) discriminated against DeFord in violation of section 5851 of the Energy Reorganization Act (ERA), but remanded the case to me to "revise the entire package" of remedies for this discrimination. There were several elements of the package of remedies which I will refashion in accordance with the court's decision.

    TVA shall immediately reinstate Mr. DeFord to his former

position. If his former position no longer exists or there is no vacancy, TVA shall apply to the Administrative Law Judge for approval of the job in which it proposes to place DeFord, with an explanation of the duties, functions, responsibilities, physical location and working conditions of the job sufficient for the ALJ to determine whether it is comparable to DeFord's former position.

    In my initial decision in this case of March 4, 1981, I did not consider each element of DeFord's claim for compensatory damages because I had held that such damages were not recoverable under the ERA. Since that ruling has been overturned by the Court of Appeals, it becomes necessary for me to consider whether, in the words of the court, compensatory damages are "appropriate."

    There were three elements of DeFord'd claim for compensatory damages: medical expenses; damages for emotional pain and suffering and mental anguish; and damages for injury to reputation. The ALJ had found that DeFord's medical problems were caused by TVA's discriminatory conduct and that his medical expenses, therefore, were recoverable. That finding is supported by the record and I adopt it. However, the ALJ held that DeFord had not presented sufficient evidence to support a finding on the nature and extent of mental suffering caused by the discriminatory action of TVA. These two facts seem inconsistent. DeFord's medical problems, namely complication of his pre-existing mitral valve prolapse problem with symptoms of chest pain and tightness, difficulty in swallowing, nausea and indigestion, were the result of stress, anxiety and depression over his work situation. Stress, anxiety and depression are mental conditions of which his physical symptoms are specific evidence. DeFord was still seeing a psychiatrist at the time of the hearing, and Dr. Prince, an internist who had examined DeFord, was of the opinion that DeFord should not return to work while these symptoms persisted. There is sufficient evidence in the record of DeFord's mental and emotional distress as a result of TVA's discriminatory actions for an award of damages. cf., Aumiller v. U. of Delaware, 434 F. Supp. 1273 (D.Del 1977); Donovan v. Reinbold, 433 F.2d 738 (9th Cir. 1970); Seaton v. Sky Realty Co., Inc., 491 F.2d 634 (7th Cir. 1974); Sterzing v. Fort Bend, Indiana, School District, 376 F.Supp. 657 (S.D. Tex. 1972).

    Although I agree that DeFord has suffered damage to his professional reputation, I do not believe it was as extensive as indicated by the ALJ. TVA did attempt to and did create the impression that DeFord was a poor manager and was of questionable technical competence when it transferred him to a job with no supervisory responsibilities in which he was not allowed to sign any of the work produced. But it is somewhat speculative to say that after his vindication through reinstatement there will be rumors and suspicions about him as a quality assurance professional. The damage, if any, to DeFord's reputation in the engineering field generally also contains a large element of speculation. The only evidence submitted on this question was DeFord's testimony that he had been recognized by various professional engineering societies, chaired a committee of one, and served on two other committees. There was no evidence, for example, that he was asked to step down as committee chairman, to resign from the committees or from any of the organizations. No evidence was presented that the members of these organizations and committees were even aware of DeFord's treatment by TVA, although some word of mouth knowledge can be inferred. In these circumstances, taking guidance from analogous cases under 42 U.S.C. 1983 (see citations above), I think it is appropriate to award $10,000 for mental pain and suffering and damage to reputation.

    My order that DeFord be placed retroactively on administrative leave until he is able to return to work was reversed by the Court of Appeals because DeFord does not meet the criteria for the granting of administrative leave in TVA regulations (e.g., jury duty, military service). To grant DeFord administrative leave, therefore, would go beyond a "make whole" remedy by providing a benefit to which DeFord would not have been entitled.

    However, the court did say that "[i]n conjunction with reinstatement, the compensation and damages provided for by statute should allow the formulation of a complete and proper remedy . . ." TVA's discriminatory action was the cause of DeFord's mental distress and medical symptoms which have kept

him out of work. While ordinarily an employee who is absent due to illness must take sick leave, it would be unfair and deprive DeFord of complete relief to require him to use such leave for an absence due to illness caused by TVA's illegal conduct. Therefore, TVA is ordered to pay DeFord back pay from September 12, 1980 until the date of reinstatement under (I) above without the expenditure of sick leave.

    In accordance with the Sixth Circuit's decision that reasonable attorney's fees covering all aspects of this case should be awarded, and in light of my earlier order that the itemization of fees, costs and expenses previously submitted by DeFord's attorneys was, in other respects, reasonable, TVA should pay DeFord's attorney's fees and expenses of $11,587.02.

       RAYMOND J. DONOVAN
       Secretary of Labor

Dated: April 30, 1984
Washington, D.C.