In the Matter of

JOHN J. HEDDEN, III
    Complainant

    v.

CONAM INSPECTION
    Respondent

    John J. Hedden, III filed a complaint alleging that the respondent discharged him 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). The respondent denied the allegation, claiming that Hedden was fired because of theft.

    After a hearing before an Administrative Law Judge, hereinafter sometimes referred to as the Judge, the Judge issued a recommended decision dated January 22, 1982, containing his

recommended findings of fact, conclusions of law, and order. He found that the evidence did not establish that Hedden was discharged for the reason given by the respondent, viz. theft or dishonesty involving the unauthorized purchase with respondent's funds of property not pertaining to the respondent's business. The Judge found that this reason was a pretex. He found that the evidence showed that Hedden was fired because he gave information concerning violations of Nuclear Regulatory Commission (NRC) regulations by the respondent, including falsification, to an NRC investigator in the course of an audit and inspection of the respondent's operations, and that his discharge was therefore in violation of the employee protection provisions of Section 210 of the Act (42 U.S.C. 5851).

    In arriving at his conclusion with respect to whether Hedden was discharged because of activity protected by 42 U.S.C. 5851, that is, whether the discharge was retaliatory, the Administrative Law Judge followed the principles which have been applied in cases involving alleged retaliation against employees arising under Title VII of the Civil Rights Act of 1964 (42 U.S.C. 2000(e)). Texas Department of Community Affairs v. Burdine, 450 U.S. 248(1981); McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973); Hochstadt v. Worcester Foundation, 545 F.2d 222 (1st Cir. 1976); also Loeb v. Textron, Inc., 600 F.2d 1003 (1st Cir. 1979), a case under the Age Discrimination in Employment Act of 1967 (29 U.S.C. 621); and NLRB v. Wright Line, 662 F.2d 899 (1st Cir. 1981); Behring International, Inc. v. NLRB, 675 F.2d 83 (3rd Cir. 1982). Pursuant to these principles, the employee must make out a prima facie case of discrimination. The employer then has the burden of articulating some legitimate, nondiscriminatory reason for the employee's discharge. The employee must have the opportunity to prove that the reasons offered by the employer were not its true reasons but were pretexts. The ultimate burden of persuading the trier of fact that the employer intentionally discriminated against the employee remains with the employee. Texas Department of Community Affairs v. Burdine, supra. These principles are applicable to this case.

    On the basis of the entire record, I find that, except as indicated hereinafter, the findings of fact, conclusions of law, and order contained in the Judge's recommended decision dated January 22, 1982 are supported by the evidence, are in accordance with applicable law, and are proper, and I adopt them as my own.

The preponderance of the evidence shows that the reason asserted by the respondent in defense of it action was pretextual and that but for the protected activity the respondent would not have discharged Hedden. The evidence establishes that the discharge of Hedden violated section 210 of the Act.

    With respect to the affirmative relief to be provided, the Judge found, among other things, that Hedden was entitled to payment for medical expenses, pain and suffering, and damage to his reputation which he sustained as a result of his discriminatory discharge. As I stated previously in my decision dated March 4, 1981 in DeFord v. Tennessee Valley Authority, Case No. 81-ERA-1, "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."

    As to the question of attorneys' fees, counsel for the complainant submitted an application for an attorney's fee in the amount of 1/3 the total award, pursuant to 42 U.S.C. 5851 and 29 CFR 24.6(b)(3). The Judge recommended the award of an attorney's fee of $4,875.55. in computing this amount, the Judge assumed a total award of $14,626.55, obtained by adding $8,760 for back pay, plus $5,000 for pain and suffering and damage to reputation, plus $866.65 for medical expenses. The recommended fee represents 1/3 of the total of $14,626.55. Counsel for the respondent raised several objections, including objection against the payment of a fee in accordance with a contingent fee arrangement between the complainant and his counsel, under which the fee would be based on a fixed percentage of the award.

    Apart from any other deficiencies there may be in the amount of the recommended attorney's fee, it is clear that such fee cannot stand because it is based in part upon recommended awards which have been found to be invalid, viz. awards for medical expenses, pain and suffering and damage to reputation. Therefore, a fee for the complainant's attorney will

not be awarded at this time. Counsel may file an application therefore hereafter, together with supporting data, including, among other things, his professional qualifications and his normal billing rate.

    Accordingly, the respondent, Conam Inspection, is hereby ordered to:

1. Reinstate the complainant to his former position as radiation technician forthwith.

2. Pay to the complainant back pay in the amount of $320 per week, which amount is to be adjusted for any increases due from September 14, 1981, until the date of reinstatement together with a sum representing earned vacation time owed to the complainant.

3. Ensure that in all references to the discharge it is made clear that the complainant was discharged because of his cooperation with the Nuclear Regulatory commission, that the discharge was found to be unlawful by the Secretary of Labor, and that the reasons given by the company suggesting that the complainant was in any way dishonest or engaged in any theft or other improper or illegal conduct were found after full hearing to have no basis whatsoever.

       RAYMOND J. DONOVAN
       Secretary of Labor