ESICORP, INC., formerly known
as EBASCO SERVICES, INC.,
Respondent.
ORDER RECOMMENDING THE GRANTING
OF COMPLAINANT'S MOTION FOR RECONSIDERATION
Upon consideration of Complainant's Motion for
Reconsideration of Recommended Decision and Order on Damages, any
opposition thereto, and the record herein, it is hereby ORDERED
that the Recommended Decision and Order on Damages in this
matter, dated January 26, 1996, be amended as follows:
1. The third full paragraph on page 7 of the Recommended
Decision and Order shall be amended to read:
Also considered in the back pay calculation is the amount of
interim earnings made by Complainant during the back pay
period. Interim earnings in replacement employment should
be deducted from a back pay award. Blackburn,
86-ERA-4, Sec. Dec., Oct. 30, 1991. The employer, and not
the complainant bears the burden of proving a deduction from
back pay on account of interim earnings. Hadely v.
Southeast Coop. Serv. Co., 86-STA-24, Sec. Dec., June
28, 1991. Here, the only evidence of interim earnings has
been presented by the Complainant in the form of
Complainant's tax returns. The problem presented is how to
calculate which interim earnings were earned during the 10
month period that Complainant would have been working for
Texas Utilities. Of Complainant's 1989 adjusted gross
income was $18,913.00, $5,009.00 qualifies as interim
earnings. This figure does not reflect what amount of work
Complainant did during the
[PAGE 2]
time he would have worked for Texas Utilities. Since Complainant
would have worked 10 months out of the year, or 83.3% of the
year, then Complainant will only have 83.3% of his interim
earnings offset against his back pay. The offset interim
earnings will be $5,009.00 x .833 = $4,172.00. The total amount
of back pay due Complainant is $34,549.00 - $4,172.00 =
$30,377.00.
2. The first paragraph of the ORDER section on page 8 shall
be amended to read:
1. Respondents shall pay to Complainant back pay in
the amount of $34,549.00 less interim earnings of $4,172.00
for a total of $30,377.00, plus the appropriate interest at
the IRS rate, computed until the date of date of payment to
Complainant.
