DATE:  August 16, 1993
CASE NO. 86-ERA-4

IN THE MATTER OF

PAUL A. BLACKBURN,

               COMPLAINANT,

     v.

METRIC CONSTRUCTORS, INC.,

               RESPONDENT.


BEFORE:  THE SECRETARY OF LABOR


                    FINAL ORDER ON COMPENSATORY DAMAGES

     The United States Court of Appeals for the Fourth Circuit
has remanded this case, which arises under the Energy
Reorganization Act of 1974, as amended (ERA), 42 U.S.C. §
5851 (1988), to the Secretary "for a determination of the
appropriate amount of compensatory damages."  Blackburn v.
Martin, 982 F.2d 125, 127 (4th Cir. 1992).
     The Secretary previously awarded Complainant back pay with
interest, expenses, fees, and costs, after finding that
Respondent violated the ERA by terminating Complainant when he
refused to work in Respondent's nuclear plant reactor containment
area without protective lead shielding in place.  Sec. Fin. Ord.
on Atty. Fees, Mar. 13, 1992; Sec. Dec. and Ord. on Dam. and
Atty. Fees and Rem. on Atty. Fees (Sec. Dec.), Oct. 30, 1991; and
Sec. Dec. and Ord./Rem. Ord. (Sec. Rem. Ord.), June 21, 1988. 
Complainant appealed the Secretary's calculation of his back pay
and the Secretary's denial of an award of compensatory damages. 
The court affirmed the Secretary's decision on back pay but
concluded that the denial of compensatory damages was not
supported by substantial evidence.
     The Secretary had viewed Complainant's compensatory damages
claim as one for emotional stress resulting from Complainant's 
[PAGE 2]
"diminished financial situation brought about because of his
inability to find a job following his termination from Metric." 
Sec. Dec. at 15.  The claim was denied because the record failed
to establish the drastic change in Complainant's financial
situation that Complainant described.  Although the Court of
Appeals agreed that there is little evidence that Complainant's
financial situation worsened after his discharge by Respondent,
the court concluded that the Secretary had viewed Complainant's
claim too narrowly.  Blackburn, 982 F.2d at 132. 
Emphasizing that compensatory damages are appropriate for mental
anguish when the economic impact cannot be quantified, the court
found that a fair reading of at least a portion of the hearing
testimony attributed Complainant's loss of self esteem and
emotional problems to the fact that he was fired, apart from any
financial consequences of the termination.  Id.
     Both parties have filed briefs before me, as permitted by an
order issued November 19, 1992.  First, Complainant requests that
the case be remanded to the ALJ for taking additional testimony
and issuing a supplemental recommended order.  I deny that
request.  This case was remanded to the ALJ earlier specifically
"for receipt of such evidence as is necessary to determine what
. . . compensatory damages are due to Complainant . . . ."  Sec.
Rem. Ord. at 16-17.  At that time, Complainant was given ample
opportunity to adduce relevant evidence, and the ALJ then ruled
on the evidence he proffered.  See Recommended Decision
and Order on Remand (R.D. and O.) dated February 13, 1989, at 4,
6.  In remanding the case to the Secretary, the Court of Appeals
acknowledged that the Secretary had not yet assessed whether
the amount recommended by the ALJ was appropriate. 
Blackburn, 982 F.2d at 133.  Thus, a further remand is not
called for under the circumstances and was not contemplated by
the Court of Appeals. [1] 
     I also reject Respondent's continued assertions that
Complainant is not entitled to any award.  Referring to the
testimony of Complainant, his wife, and his father, the court
stated that the record includes "substantial evidence that the
emotional distress Blackburn experienced was due, at least in
part, to the fact of the wrongful discharge itself" and
"substantial evidence to support an award of compensatory
damages."  Blackburn, 982 F.2d at 132, 133.  Although
Respondent argues that this testimony is contradicted by the
facts that Complainant did not seek professional counseling and
immediately proceeded to other employment, these facts do not
persuade me to discredit the testimony.  It is not required that
Complainant prove disabling or incapacitating emotional distress,
as Respondent implies, only genuine, albeit essentially
subjective, injury of some magnitude.  See Carey v.
Piphus, 435 U.S. 247, 264 
[PAGE 3]
n.20 (1978). [2]  
     The ALJ found as follows:
     The firing by Metric lowered Mr. Blackburn's self
     esteem.  He became depressed and had difficulty
     sleeping.  The stress of the termination disrupted his
     family, caused quarrels at home and adversely affected
     his relationship with his wife and children.
R.D. and O. at 4 (citations omitted).  The ALJ's summary of the
relevant testimony is consistent with the record and reflects the
various consequences of Complainant's emotional distress that was
"due, at least in part, to the fact of the wrongful discharge
itself."  Blackburn, 982 F.2d at 132.  More specifically,
the record shows that Complainant considered Respondent's firing
him to be "just like saying a person is no good."  Transcript of
September 12, 1988 (T.), at 12.  He felt "really in a low," and
had to rely on his father for help to come out of his depression. 
T. at 13.  The firing affected Complainant's self image and
impacted his behavior --  he was "short" with his wife and
children.  T. at 12.  Complainant's wife testified about the
stress associated with the firing and the emotional strain on
their relationship.  T. at 59, 61.  Complainant's father
testified about Complainant's pride and work ethic and explained
that getting fired made Complainant feel sorry for himself.  T.
at 66-67, 72.  The father observed Complainant's emotional state
and coached him to lose "that sorry feeling" and to "get up off
the dirt."  T. at 67, 73.
     Nevertheless, Complainant's evidence is insufficient to
support an award in the amount recommended by the ALJ.  In
determining appropriate amounts of compensatory damages in prior
cases, the Secretary has reviewed the relevant evidence and
considered the facts in light of awards in other decisions
involving emotional distress.  See, e.g.,
Lederhaus v. Paschen, Case No. 91-ERA-13, Sec. Dec. and
Ord., Oct. 26, 1992, slip op. at 10-14, and cases cited therein;
McCuistion v. TVA, Case 
No. 89-ERA-6, Sec. Dec. and Ord., Nov. 13, 1991, slip op. at 18-
22, and cases cited therein.  After reviewing the observations
and accounts of Complainant's emotional distress based on the
impact of the firing itself, and considering these facts and
circumstances in light of those in prior cases involving awards,
I reduce the ALJ's recommended amount and award Complainant
$5,000 in compensatory damages.   
     SO ORDERED.



                              ROBERT B. REICH
                              Secretary of Labor

Washington, D.C.



[ENDNOTES]
           
[1]   Respondent urges that Complainant's brief be disregarded
because it was filed out of time and because it constitutes an
inappropriate motion for a new hearing.  Since I agree with
Respondent that Complainant's brief is substantively without
merit, I decline to rule on the timeliness issue.

[2]   Nor, despite Respondent's insistence, do I disbelieve the
testimony because Complainant did not raise the issue of
emotional distress in his original complaint or at the initial
hearing.  A complainant is not required to include an explanation
of the damages sought in his whistleblower complaint.  See
Sawyers v. Baldwin Union Free School District, Case No.
85-TSC-1, Sec. Dec. and Ord. of Rem., Oct. 5, 1988, slip op. at
3-4.  Further, the first hearing in this case was limited to
substantive issues.  Transcript of December 16, 1985, at 3(b)-4.