DATE: April 14, 1994
CASE NO. 87-ERA-21
IN THE MATTER OF
BARBARA POGUE,
COMPLAINANT,
v.
U.S. DEPARTMENT OF THE NAVY
MARE ISLAND NAVAL SHIPYARD,
RESPONDENT.
BEFORE: THE SECRETARY OF LABOR
FINAL DECISION AND ORDER
ON REMAND
The Secretary issued a Final Decision and Order (F. D. and
O.) in this case arising under the Comprehensive Environmental
Response, Compensation and Liability Act (CERCLA), 42 U.S.C.
§ 9610 (1988), [1] on May 10, 1990, holding that federal
employees are covered by the employee protection provision of
CERCLA, but finding that Respondent proved it would have
disciplined and transferred Complainant even if she had not
engaged in protected activities. F. D. and O. at 52-53.
Complainant appealed and the United States Court of Appeals for
the Ninth Circuit reversed and remanded the case to the Secretary
for "a determination of [Complainant's] damages, reasonable
attorney's fees, and any other remedies that may be warranted."
Pogue v. U.S. Dep't of Labor, 940 F.2d 1287, 1291 (9th
Cir. 1991).
In her [Recommended] Decision and Order (R. D. and O. ) of
January 15, 1988, the Administrative Law Judge (ALJ) had
recommended that Respondent be ordered to expunge Complainant's
personnel file of any references to and to terminate the
[PAGE 2]
disciplinary actions taken against Complainant from January to
April of 1987; to grant Complainant a within-grade increase
effective as of the date it would have been due absent the
disciplinary actions; to ensure that Complainant is employed
in a position comparable to the one she held before she was
transferred, with appropriate training; and to pay Complainant's
reasonable attorney's fees and costs. R. D. and O. at 60. The
ALJ issued a Supplemental Recommended Decision (S. R. D.) on
February 23, 1988, in which she held that "a basis for
compensatory damages . . . is not clearly demonstrated," and
declined to award exemplary (punitive) damages because the
question of coverage under the Toxic Substances Control Act was
one of first impression which had not been decided by the
Secretary. [2] S. R. D. at 2. On March 24, 1988, the ALJ
issued a Decision and Order Awarding Attorney's Fees (Attorney's
Fees Order) in which she reduced the number of hours claimed as
well as the hourly rate claimed for attorney time, and granted
$80,414.00 in fees. The ALJ also reduced the amount claimed for
costs and granted $5,329.22.
Complainant excepted to the remedies, damages, attorney's
fees and costs provisions of the ALJ's recommended decisions in
several respects. Complainant argues the ALJ erred in not
awarding any compensatory damages and in failing to order
Complainant reinstated to the position of environmental engineer.
In addition, Complainant asserts the ALJ should not have reduced
the hourly rate, the number of hours or the costs requested in
the petition for attorney's fees. Complainant did not discuss
the ALJ's ruling on exemplary damages in Complainant's Opening
Brief on Review by the Secretary, and in her Response Brief on
Review (Complainant's Response Brief) Complainant only said "this
issue is not ripe for review." Complainant's Response Brief
at 130. In addition, following remand by the court of appeals,
Complainant moved on March 12, 1992 to remand this case to the
ALJ for a determination of damages and appropriate remedies.
Respondent filed an opposition to that motion on April 10, 1992.
Furthermore, on June 19, 1992 Complainant's attorneys Alan
Waltner and Roy Gorman moved to intervene in this case "for the
limited purpose of preserving their rights to seek and be awarded
attorneys fees and costs . . . ." Complainant's former attorneys
represented in a memorandum of law attached to their motion that
Complainant had discharged them and that they no longer
represented her. Among other thing, their memorandum also
requested remand of this case to ALJ to give Complainant's former
attorneys an opportunity to present evidence and submit a request
for supplemental attorneys fees for work performed after the date
of the ALJ's Decision and Order Awarding Attorney's Fees of
March 24, 1988.
[PAGE 3]
On June 29, 1992 Complainant filed with the ALJ a "Request
. . . for Application to Intervene Dated June 19, 1992 by
Applicants in Intervention and Claimants (Roy Gorman and Alan
Waltner) to be Denied." (Complainant's request.) Respondent
filed a Request to Provide Response to Application to Intervene
on July 10, 1992, and on July 21, 1992 Complainant's former
attorneys moved to Strike General Submission of Barbara Pogue
Regarding Application to Intervene; or in the Alternative,
Request for Leave to File Reply under Protective Order.
The Secretary issued an Order Establishing Briefing Schedule
on November 30, 1993 which noted all of the above pleadings and
requests. It granted Respondent's request to file a response to
Complainant's former attorneys' Application to Intervene but
denied Complainant's attorney's motion to strike Complainant's
request. The briefing schedule granted Complainant's former
attorneys an opportunity to reply to Complainant's request which
they did on January 5, 1993.
Respondent asserted that the Secretary has no authority to
award either compensatory or punitive damages under the statutes
at issue in this case, and that if the Secretary finds she has
such authority, that Complainant is not entitled to such damages
here. Respondent's Initial Brief at 144-61. Respondent also
argued that Complainant is not entitled to attorney's fees at
all, and that if the Secretary finds she is entitled to fees, the
amount awarded by the ALJ should be reduced "based on the limited
results in the case." Id. at 164. Respondent apparently
did not except to the other remedies recommended by the ALJ. [3]
I - Complainant's motion to remand.
On March 12, 1992, Complainant moved to remand this matter
to the ALJ "for a determination of damages and appropriate
remedies." Complainant noted that the Court of Appeals had
remanded this matter to the Secretary for a determination of
remedies, damages and attorney's fees, and asserted that "the
proper procedure is for the [Secretary] to now remand the case"
to the ALJ so that the ALJ can "then make recommendations to the
[Secretary] on all issues of fact and law in accordance with
29 C.F.R. § 24.6." Complainant's Motion to Remand to
Administrative Law Judge at 4. Respondent filed an Opposition to
Complainant's Motion to Remand to Administrative Law Judge on
April 10, 1992.
In her Supplemental Recommended Decision the ALJ confirmed
her earlier denial of Complainant's Motion to Bifurcate Hearing
and Partially Continue Trial. In that motion, Complainant had
sought to separate the hearing on the merits from the hearing on
damages and remedies and to postpone the latter hearing. The ALJ
held in the S. R. D. that she had ruled before the hearing in the
[PAGE 4]
case that "there would be no bifurcation; all the issues raised
would be tried." S. R. D. at 2. Complainant was on notice
therefore that the issues of damages and remedies would be
addressed at the hearing in this case, and Complainant did
testify about damage to her reputation and mental pain and
suffering.
The Secretary ruled on a similar request in DeFord v.
TVA, Case No. 81-ERA-1, Sec. Order Aug. 16, 1984. After the
case had been remanded to the Secretary by the court of appeals
and the Secretary had issued an order granting certain relief as
directed by the court, the complainant moved for reconsideration
to supplement the relief to account for additional damages
occurring after the hearing. The Secretary denied that request
on the grounds that a judgment can be amended or altered only
where new evidence has been discovered of facts existing at the
time of trial of which the party was excusably ignorant and not
discoverable through the exercise of due diligence.
DeFord, slip op. at 2. As the Secretary said there
"[Complainant] has the burden . . . [at trial] of proving each
element of damage including future medical expenses and future
pain and suffering." Id., citations omitted. A hearing
record can be reopened to supplement the proof of damages only in
a narrow class of cases involving complex and poorly understood
conditions. Id., at 3.
Although the procedural posture of this case is not exactly
the same as DeFord, in effect Complainant is making the
same request as the complainant there - for a second chance to
prove damages which she had an opportunity to prove, and was on
notice from the ALJ would be tried, at the original hearing. [4]
Complainant has not demonstrated that she was excusably unaware
at the time of the hearing of future damages which would flow
from Respondent's actions in this case, and her motion to remand
to the ALJ for that purpose is denied.
II - Compensatory damages.
The Secretary has held that compensatory damages for
emotional distress and anxiety may be awarded under some of the
statutes implemented by 29 C.F.R. Part 24. Blackburn v.
Metric Constructors, Inc., Case No. 86-ERA-4, Sec. Dec. and
Order on Damages and Attorneys Fees and Remand on Attorneys Fees
Oct. 30, 1991, slip op. at 14 (Energy Reorganization Act of 1974,
as amended (ERA), 42 U.S.C. § 5851 (1988)) (citing DeFord
v. Secretary of Labor, 700 F.2d 281, 288 (6th Cir. 1983));
Johnson v. Old Dominion Security, Case Nos. 86-CAA-3,4,5,
Sec. Final Dec. and Order May 29, 1991, slip op. at 25-26 (Toxic Substances
Control Act). Complainant has the burden of "proving the
existence and magnitude of subjective injuries," Busche v.
[PAGE 5]
Burkee, 649 F.2d 509, 519 (7th Cir. 1981), cert.
denied, Burkee v. Busche, 454 U.S. 897 (1981), and
must show that emotional stress and mental anguish are the
"proximate result" of Respondent's unlawful action.
Blackburn v. Metric, slip op.
at 14. This can be proved "by showing the nature and
circumstances of the wrong and its effect on the plaintiff."
Johnson v. Old Dominion, slip op. at 26 n.16
(quoting Carey v. Piphus, 435 U.S. 247, 263-64 (1978)).
The Supreme Court cautioned in Carey v. Piphus that
emotional distress cannot be presumed and compensatory damages
for mental and emotional distress cannot be awarded "without
proof that such injury actually was caused." Carey v.
Piphus, 435 U.S. at 263-64.
In Blackburn v. Metric, the ALJ had
recommended an award of $10,000 for emotional distress and
mental anguish, and the complainant's testimony had been
supported by the testimony of his wife and father. [5] In
Johnson v. Old Dominion, where compensatory
damages for emotional distress were awarded, the Secretary found
that "Complainants sustained prolonged exposure to chemical
substances that acutely affected them in the form of flu-like
symptoms, skin irritation, and [in one case] a gland enlargement.
At least one of the substances was carcinogenic
. . . . Ongoing anxiety about symptoms coupled with frustration
at their employer's persistent inaction exacerbated anguish,
embarrassment, humiliation and economic anxiety associated with
discharge." Johnson v. Old Dominion, slip op. at 27. In
addition, Respondent in Old Dominion "stonewall[ed]" two
of the Complainants about their contamination complaints and
harassed them. Id. Financial difficulties forced one
complainant to drop out of college and another to move to find a
new job. Id. at 28.
Similarly, in DeFord v. Tennessee Valley Auth., Case No.
81-ERA-1, Sec. Order on Remand April 30, 1984, the Secretary
found that the complainant's medical problems "were the result of
stress, anxiety and depression over his work situation." Slip
op. at 2-3. The record included the deposition of a psychiatrist
and an internist, the latter giving his opinion, which the ALJ
credited, that the complainant's "poor health stemmed from the
recent crises at work." DeFord v. Tennessee Valley Auth.,
slip op. at 9. The Secretary also found that Complainant there
suffered damage to his professional reputation because Respondent
purposely created the impression that Complainant "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."
Id. at 3. But the Secretary reduced the award for damage
to reputation because it was speculative whether fellow employees
would continue to spread rumors about him, and there was no
[PAGE 6]
evidence that his general reputation as an engineer was damaged,
such as being asked to step down as chairman of a committee of a
professional society of which he was a member, or being asked to
resign from the committee or from the organization. Id.
at 3-4.
The ALJ here found that "a basis for compensatory damages
. . . is not clearly demonstrated." S. R. D. at 2. The record
in this case has been carefully reviewed and I find that it
supports the ALJ's conclusion. The only evidence on emotional
distress and damage to reputation is five pages of testimony by
the Complainant that some of her co-workers have been unfriendly
toward her, T. 417-18, although she testified it was "hard to
say" if she had been treated badly by her colleagues. T. 418.
Complainant claimed she lost sleep because of the uncertainty
about her job, T. 418, she gained weight both before and during
her pregnancy (Complainant was pregnant at the time of the
hearing), T. 419, and she had difficulty concentrating and got
irritable. T. 420-21. Complainant believed her reputation was
damaged because "everyone" in the department where she had worked
knew about her transfer and many others in another department
knew about it as well. T. 417. In addition, the employees who
reviewed the letter of suspension "may have thought less of" her.
T. 582. Complainant conceded she did not belong to any
environmental engineering societies, T. 585, and although she
applied for jobs at the Environmental Protection Agency and the
state environmental agency, T. 586-87, she offered no evidence
that her failure to be hired by EPA and the lack of response from
the state agency were because of damage to her reputation by
Respondent. There was no supporting testimony about
Complainant's emotional distress or damage to her reputation, for
example, from doctors, members of her family, or professional
colleagues. [6]
Weighing the evidence here in light of the evidence in the
whistleblower cases discussed above, as well as court decisions
on the sufficiency of the evidence to carry the plaintiff's
burden on damages, I find it was reasonable for the ALJ to
conclude that entitlement to compensatory damages was not
demonstrated. In Perez v. Rodriguez Bou, 575 F.2d 21 (1st
Cir. 1978), for example, the court upheld an award of only one
dollar for mental distress, explaining that
the only evidence of actual injury is
plaintiffs' own statement that they
experienced some psychological discomfort as
a result of [defendant's action]. There is
no evidence of loss of employment or
employment opportunities, or delay in meeting
academic requirements, or significant harm to
plaintiffs' reputation in the community, or
[PAGE 7]
medically cognizable psychological distress. In such
circumstances, courts are not inclined to award damages for
general mental distress.
575 F.2d at 25.
When a district court in another case ordered remittitur of
$22,000 in damages awarded by a jury for emotional distress, the
court of appeals upheld the trial court's exercise of discretion
because "[t]he evidence of emotional distress consisted chiefly
of plaintiff's own testimony that she was depressed and
humiliated" by the defendant's action and had lost motivation.
Spence v. Board of Educ., 806 F.2d 1198, 1201 (3d Cir. 1986).
The court said
[p]laintiff offered no evidence that she
suffered physically from her emotional
distress or that she sought professional
psychiatric counseling. It is uncontroverted
that plaintiff suffered no loss of job or
reduction in pay. Thus, she did not suffer
emotional distress resulting from loss of
income. In short, neither the circumstances
nor the testimony established that there was
'a reasonable probability, rather than a mere
possibility, that damages due to emotional
distress were in fact incurred as a result of
[defendant's actions].'"
Id. (quoting from the district court opinion).
The Third Circuit overturned a jury award of $15,000 for
emotional distress and humiliation in Gunby v. Pennsylvania
Elec. Co., 840 F.2d 1108 (3d Cir. 1988), cert. denied,
492 U.S. 905 (1989), rejecting the plaintiff's contention that
damages from mental and emotional distress should be presumed.
840 F.2d at 1121. The court held that "there must be
sufficient evidence to support the award [of damages for
emotional distress]," and "speculative damages will not be
awarded." Id. (emphasis in original). In its review of
other cases on the award of damages for emotional distress, the
court noted that the plaintiff's testimony may be sufficient to
support such an award "where found by the district court to be
credible." Id. at 1122. See alsoKeenan v.
City of Philadelphia, 55 Fair Empl. Prac Cas. (BNA) 932, 941
(E.D. Pa. 1991) (compensatory damages for emotional stress
supported by testimony of two expert witnesses, including a
psychiatrist, family, friends and neighbors of plaintiffs). The
Ninth Circuit has upheld the award of damages for mental distress
based on the testimony of the plaintiffs where the magistrate
credited their testimony, Phiffer v. Proud Parrot
[PAGE 8]
Motor Hotel, Inc., 648 F.2d 548, 552-53 (9th Cir. 1980), and
has held that failure to award compensatory damages is clear
error where plaintiffs presented detailed and substantial
testimony about emotional distress caused by racial
discrimination, and the district court did not find this
testimony not credible. Johnson v. Hale, 940 F.2d 1192,
1194 (9th Cir. 1991).
It is evident that the ALJ did not find Complainant's
testimony on emotional distress and damage to her reputation
credible. The ALJ found that Complainant's proof of damages was
"speculative" or inadequate, not, as Complainant argues, that
damage had been proven with only the amount uncertain. S. R. D.
at 2; see Complainant's Opening Brief on Review at 34.
Complainant's testimony about damage to her reputation did not
refer to even one incident of another engineer or professional
who held her in lower esteem; she could only speculate that her
reputation suffered because other employees knew about her
transfer and "may have thought less" of her. Her testimony about
emotional distress was very general, except as to weight gain
associated with her pregnancy, and not sufficient to show
causation, as the ALJ held. Therefore, I adopt the ALJ's
recommendation that compensatory damages be denied.
III - Reinstatement.
Complainant also sought reinstatement to the position of
environmental engineer in the area of hazardous waste management,
Complainant's Opening Brief on Review at 42, not simply a
comparable job as recommended by the ALJ. The Secretary found,
however, that Respondent never appointed Complainant as the
permanent hazardous waste engineer, but rather had made a
commitment to hire another engineer for that position.
Complainant was assigned the hazardous waste duties on a
temporary basis until the new engineer began work. Sec'y. F. D.
and O. at 55. These findings were not disturbed by the court of
appeals. Pogue v. U.S. Dep't of Labor, 940 F.2d at 1290-
91. In addition, the only protected activity recognized by the
court of appeals was Complainant's letter to the Shipyard
Commander in November 1986, id. at 1290, after Complainant
was reassigned from hazardous waste to noise control engineering
work in October. Sec'y. F. D. and O. at 30. Moreover, even if
Complainant's activities with her hazardous waste duties were
protected, and her transfer from hazardous waste to noise control
arguably illegal retaliation, her complaint in February 1987
clearly was untimely as to that alleged act of discrimination.
English v. Whitfield, 858 F.2d 957, 961-62 (4th Cir.
1988). [7]
IV - Punitive damages.
[PAGE 9]
In her complaint of February 20, 1987, Complainant demanded
exemplary, or punitive, damages of $250,000. Complaint at 10.
The ALJ thought it was "not appropriate" to address the issue of
punitive damages until the question of the applicability of TSCA,
the only statute involved here providing for such damages, had
been decided. S. R. D. at 2. Complainant addressed the issue
of compensatory damages at some length in her Opening Brief on
Review, pp. 31-37, but did not except to the ALJ's failure to
award punitive damages. Respondent argued in its Initial Brief
that, for a variety of legal and factual reasons, punitive
damages may not and should not be awarded here. Respondent's
Initial Brief at 156-61. In her response to Respondent's initial
brief, Complainant asserted only that the issue was not ripe for
review. Complainant's Response Brief on Review at 127. The
court of appeals remanded this case to me, among other things,
for "a determination of [Complainant's] damages . . . ." 940
F.2d at 1291. This issue, therefore, now is ripe for review.
Assuming, arguendo, that the TSCA is applicable here and
that the Secretary has the authority to award punitive damages
against this Respondent, for the reasons discussed below, I find
that Complainant is not entitled to an award of punitive damages.
The Supreme Court has held that punitive damages may be
awarded where there has been "reckless or callous disregard for
the plaintiff's rights, as well as intentional violations of
federal law . . . ." Smith v. Wade, 461 U.S. 30, 51
(1983). The Court explained the purpose of punitive damages is
"'to punish [the defendant] for his outrageous conduct and to
deter him and others like him from similar conduct in the
future.' Restatement (Second) of Torts § 908(1) (1979).
The focus is on the character of the tortfeasor's conduct--
whether it is of the sort that calls for deterrence and
punishment over and above that provided by compensatory awards."
Id. at 54.
The Ninth Circuit recently remanded a sex discrimination
case under 42 U.S.C. § 1983 to the district court for
articulation of the reasons why one defendant's behavior
"evidenced sufficient 'oppression, fraud or malice' to justify
punitive damages." Bouman v. Block, 940 F.2d 1211, 1234
(9th Cir. 1991), cert. denied, Block v. Bouman, 112
S. Ct. 640 (1991). Although it declined to affirm an award of
punitive damages for the reasons stated by the district court,
the court of appeals said "the record indicates that there were
other (not well-articulated) reasons which may justify the
imposition of punitive damages." Id. at 1233. Among
other things, the district court had found that defendant's
reasons for failing to transfer a deputy sheriff -- her attitude,
immaturity and failure to understand her role as a deputy sheriff
-- were pretexts for discrimination. The plaintiff had received
excellent performance
[PAGE 10]
evaluations just before asking for the transfer, and there was
evidence that plaintiff had been reprimanded because of her sex.
In Vasbinder v. Ambach, 926 F.2d 1333 (2d Cir. 1991),
a state employee who had been given outstanding and highly
effective performance evaluations, describing him as exceptional
and exceeding all requirements, and who had just been promoted,
was given a barely effective rating and stripped of all
significant duties just after reporting wrongdoing in a state
program to the FBI. 926 F.2d at 1336. Nine days after the
United States Attorney decided not to prosecute on the wrongdoing
disclosed by the plaintiff, he was demoted. The demotion notice
said the plaintiff had not satisfactorily completed his
probationary period in the job to which he had been promoted,
although that period still had several months to run. Id.
at 1337. The court of appeals reversed a district court order
setting aside a jury finding that punitive damages were
warranted. The court of appeals held that defendants engaged in
"culpable conduct." That conduct was proven by the contrast
between rating plaintiff high or outstanding, the efficiency and
effectiveness of the program he supervised during his tenure in
the job, and revised procedures based on plaintiff's suggestions
which recovered misused funds from grantees, all before knowledge
of the FBI contact, and thereafter rating him barely effective,
stripping him of his most important duties, lengthening his
probationary period, finding him unqualified before the end of
the probationary period, and then demoting him only nine days
after the notice that the government would not pursue
indictments. The same supervisors had only recently promoted
plaintiff with full awareness of the personality problems later
used to justify demotion. The court said it was not unreasonable
for the jury to infer that defendants' actions were in callous
disregard of his rights and intended to deter other
whistleblowers and disguise the retaliatory nature of their
actions. The jury was well within its discretion to "send a
message [to defendants and others] that such retaliation is
intolerable." Id. at 1343.
Punitive damages also were awarded in Keenan v. City of
Philadelphia, 55 Fair Empl. Prac. Cas. (BNA) 932 (E.D. Pa.
1991), another sex discrimination action under 42 U.S.C. §
1983. The court found the record contained "a prolonged history
of defendants' acts [and was] riddled with anecdotal vignettes
which bespeak a course of conduct of sexually-engendered
treatment of [plaintiff . . . ." Id. at 938. Some
assignments were denied her because "it was no job for a woman,"
and her supervisor said the men in the unit were carrying her
along on an investigation "because she was a female." Higher
officials to whom plaintiff complained told others she wanted to
do things only men should
[PAGE 11]
do. Even the police commissioner "had trouble" with some of the
jobs plaintiff wanted to do. Id. at 938.
The court in Keenan v. City of Philadelphia said
"[t]he hurdle which must be vaulted before a jury may award
punitive damages is, of course, high," discussing Smith v.
Wade. Id. at 940. The court believed it would be
overreaching to disturb the jury's award because it was supported
by substantial evidence of discrimination by plaintiff's
supervisor, and the failure to act by higher officials who were
aware of the discrimination. Id. at 941. When plaintiff
complained to her supervisor's superior, he told her that her
supervisor's actions were not sex discrimination because "he did
not touch her, or ask to sleep with her . . . ." Id. at
941. The court found this shocking, saying "for [the superior
official] to have somehow supposed that the test for sex
discrimination is so stringent, so myopic, so tunnel-visioned, to
require some sort of carnal touching, or explicit request for
intercourse, is, in itself, sexist, as well as being arrant
absurdity. It is medieval nonsense." Id.
In contrast to these cases, Complainant here, at best, in
the words of the court of appeals, received "mostly . . .
'satisfactory' performance reports with the one exception of a
'marginal' rating on a critical factor. . . . [Complainant's]
employment history revealed certain problems with work
performance and getting along with her co-workers . . . ."
Pogue v. U.S. Dep't of Labor, 940 F.2d at 1290. [8] The
court recognized that Respondent had mixed motives for the
actions taken against Complainant and that, absent the letter to
the Shipyard Commander, "these instances of [Complainant's]
misconduct might have justified some disciplinary action . . . ."
Id. at 1291. The ALJ also concluded that disciplinary
action was justified for one of Complainant's acts of
insubordination. ALJ D. and O. at 37.
In these circumstances, where Complainant had a history of
performance problems before her protected activity, see
note 5, and engaged in conduct which otherwise might have
justified disciplinary action, Complainant has not carried her
burden of proving that Respondent acted wantonly or with reckless
disregard for Complainant's rights under the employee protection
provisions invoked here. There also is no evidence that
Respondent deliberately acted with the intent to injure
Complainant. Smith v. Wade, 461 U.S. at 48. In contrast,
the employees awarded punitive damages in the cases discussed
above had been rated outstanding, excellent or highly effective
or had recently been promoted, and the courts found that the low
evaluations given after they engaged in protected activity were
pretextual. Respondent in this case, on the other hand, was
struggling with
[PAGE 12]
the problem of dealing with an employee with some performance and
behavior problems. Although Respondent may have allowed
Complainant's protected activity to infect its decisions, I find
Respondent's conduct cannot be found "outrageous" justifying
punishment or to set an example to deter similar conduct in the
future. Id. at 54. Cf. Boyd v. SCM Allied
Paper Co., 42 Fair Empl. Prac. Cas. (BNA) 1643, 1657 (D. Ind.
1986) (proof of intent required in disparate treatment race
discrimination case is not equivalent to proof of "'evil motive'
and 'wilful and wanton disregard' of [plaintiff's rights]"
necessary to justify punitive damages). Complainant's request for
punitive damages is denied. [9]
V - Attorney's fees and costs.
Complainant filed a petition for attorney's fees and costs
with the ALJ requesting $121,278 in attorney's fees and $6,595.95
in costs. The request for attorney's fees included fees for
paralegal and law clerk time as well as attorney time. The ALJ
reduced the hourly rate for attorney time and the number of hours
requested for the two attorneys, a paralegal and a law clerk who
prepared and tried the case, but did not reduce the hourly rate
requested for the paralegal and the law clerk. ALJ Decision and
Order Awarding Attorney Fees (Attorney's Fees Order) at 2-4. The
ALJ also reduced the amount of costs requested, and awarded
$80,414 in fees and $5329.22 in costs. Id. at 5.
The Ninth Circuit discussed the leading Supreme Court
decisions on attorneys fees, Blum v. Stenson, 465 U.S. 886
(1984), and Hensley v. Eckerhart, 461 U.S. 424 (1983), and
established the standards applicable here for award of fees in
Chalmers v. Los Angeles, 796 F.2d 1205 (9th Cir. 1986).
The court said
[t]he initial determination of reasonable
attorney's fees is calculated by multiplying
the number of hours reasonably expended on
litigation by a reasonable hourly rate. . . .
In determining reasonable hours, counsel
bears the burden of submitting detailed time
records justifying the hours claimed to have
been expended. . . . Those hours may be
reduced by the court where documentation of
the hours is inadequate; if the case was
overstaffed and the hours are duplicated; if
the hours expended are deemed excessive or
otherwise unnecessary. . . .
Next, the district court must determine a
reasonable hourly rate considering the
[PAGE 13]
experience, skill and reputation of the attorney requesting fees.
. . . Determination of a reasonable hourly rate is not made by
reference to rates actually charged the prevailing party. . . .
[T]he district court should be guided by the rate prevailing in
the community for work performed by attorneys of comparable
skill, experience, and reputation.
The district court is in the best position to
determine in the first instance the number of
hours reasonably expended . . . and the
amount which would reasonably compensate the
attorney. . . . [The] district court [has]
discretion in determining the amount of a fee
award in view of its superior understanding
of the litigation [but] it remains important
for the district court to provide 'a concise
but clear explanation of its reasons for the
fee award.' Hensley [v. Eckerhart],
461 U.S. at 437. . . .
756 F.2d at 1210-11. SeealsoDavis v. San
Francisco, 976 F.2d 1536, 1545-1548 (9th Cir. 1992).
The ALJ explained with reasonable specificity the reductions
for hours expended which she found duplicative, excessive,
unnecessary, unproductive, or not sufficiently related to
representation of Complainant in this litigation. Attorney's Fee
Order at 3-4. As the agency representative who presided at the
hearing and regulated all pre-hearing proceedings, the ALJ was in
the best position to evaluate the attorneys' work and whether
their time expended on this litigation was reasonable, and I
adopt her findings in this respect.
Complainant submitted affidavits by other attorneys
attesting to what they believed was the market rate in the
community for attorneys litigating cases of this kind who have
skill and experience comparable to that of Complainant's
attorneys. The ALJ, however, did not give these affidavits "much
weight," relying on National Assoc. of Concerned Veterans v.
Secretary of Defense, 675 F.2d 1319 (D.C. Cir. 1982), holding
that "generalized and conclusory . . . affidavits from friendly
attorneys" are not sufficient to establish a market rate. 675
F.2d at 1325. I find it was not reasonable for the ALJ to reject
Complainant's exhibits, particularly where Respondent did not
submit any information of its own on market rates. The Ninth
Circuit has held that "[a]ffidavits of the plaintiffs' attorney
and other attorneys regarding prevailing fees in the community
. . . are satisfactory evidence of the prevailing market rate."
[PAGE 14]
United Steelworkers of Am. v. Phelps Dodge Corp., 896 F.2d
403, 407 (9th Cir. 1990); Davis v. San Francisco, 976 F.2d at
1547. [10] I find that $140 an hour was a reasonable rate, which multiplied
by the reasonable number of hours found by the ALJ produces a
lodestar for attorney's fees of $78,288. I adopt the ALJ's award
of fees for the paralegal and the law clerk.
Respondent argues that the attorney's fees granted by the
ALJ, which as described above were a substantial reduction from
the amount claimed by Complainant, should be reduced further
because of the limited success achieved. Respondent's Initial
Brief at 164-65. Respondent characterizes the success achieved
by Complainant's attorneys as "minimal," id. at 165,
because Complainant was not awarded any damages, she was not
reinstated to the environmental engineer position, and only one
discriminatory motivating factor was found, the letter to the
Shipyard Commander. Id.
Similar considerations apply to the discretionary function
of reducing requested attorney's fees as are applicable to
enhancements, Cunningham v. County of Los Angeles, 879
F.2d 473, 487 (9th Cir. 1988), and the Supreme Court has
cautioned that if "the claimed rate and the number of hours are
reasonable, the resulting product is presumed to be the
reasonable fee . . . ." Blum v. Stenson, 465 U.S. at 897.
In addition, the Court has directed that "the fee awarded should
not be reduced simply because the plaintiff failed to prevail on
every contention in the lawsuit." Hensley v. Eckerhart,
461 U.S. at 435. Cf. Cabrales v. County of Los
Angeles, 935 F.2d 1050, 1052-53 (9th Cir. 1991) (time spent
on losing stage of litigation compensable if it contributes to
ultimate success).
Complainant's success here hardly can be characterized as
"minimal". The Secretary held, and the Court of Appeals
implicitly affirmed, that federal employees are covered by the
employee protection provision of CERCLA, the first time the
Secretary had definitively made such a finding. The Court of
Appeals held that Complainant had been discriminated against, and
Complainant has been awarded substantial relief, including a
within-grade pay increase, reversal of the adverse actions of
January to April 1987, and reinstatement in a position comparable
to the one she held before her involuntary transfer. I find no
basis for a reduction in fees beyond those recommended in the
ALJ's Attorney's Fees Order.
Finally, the ALJ adequately explained her reductions in
Complainant's request for costs, Attorney's Fees Order at 4-5,
and I adopt them. Complainant is entitled to $91,598 in
attorney's fees and $5,329.22 in costs for work performed up to
March 1988. Complainants' former attorneys' application to
intervene for the limited purpose of protecting their right to
[PAGE 15]
attorney's fees is GRANTED and this case is REMANDED to the ALJ to give Complainant's former attorneys an opportunity to
supplement their request for attorney's fees.
Complainant's exceptions to the ALJ's recommendations on
damages and reinstatement are denied. Complainant's exceptions
to the ALJ's recommendation on attorney's fees, other than the
exception to the reduction of the hourly rate for attorney time,
are denied. Respondent's exceptions are denied and Respondent is
ORDERED to expunge Complainant's personnel file of any references
to and to terminate the disciplinary actions taken against
Complainant from January to April of 1987; to grant Complainant a
within-grade increase effective as of the date it would have been
due absent the disciplinary actions; to ensure that Complainant
is employed in a position comparable to the one she held before
she was transferred, with appropriate training; and to pay
Complainant's reasonable attorney's fees and costs as provided in
the ALJ's Decision and Order Awarding Attorney's Fees, with the
modification discussed above in part V of this decision.
SO ORDERED.
ROBERT B. REICH
Secretary of Labor
Washington, D.C.
[ENDNOTES]
[1] Complainant also alleged violations of the employee
protection provisions of the Solid Waste Disposal Act, 42 U.S.C.
§ 6971(a) (1988), the Clean Water Act, 33 U.S.C. §
1367(a) (1988), and the Toxic Substances Control Act, 15 U.S.C.
§ 2622 (1988). The Secretary did not reach the question of
the applicability of these statutes because she found in favor of
Respondent on the merits.
[2] The Toxic Substances Control Act is the only statute of the
four alleged to have been violated which provides for exemplary
damages.
[3] In its Rebuttal Brief, Respondent argued that Complainant
should not be reinstated to an engineer position in "Code 106,"
the health and safety office where she was working when she wrote
the letter to the Shipyard Commander. Respondent's Rebuttal to
Complainant's Opening Brief at 42-46. That argument is moot
because the ALJ only recommended, and I have adopted her
recommendation, that Respondent "[e]nsure that the engineering
position [Complainant] now holds provides the same promotional
potential as that held in Code 106, and ensure that she is
provided all necessary training to satisfactorily perform in that
position," R. D. and O. at 60, and I have denied Complainant's
request that she be reinstated to the environmental engineer
position. See discussion below at pp. 13-14.
[4] The only case cited by Complainant, Lindberg v.
Califano, 469 F. Supp. 920, (N.D. Cal. 1979), is inapposite because it
arose under section 205(g) of the Social Security Act, 42 U.S.C.
§ 405(g) (1988), which explicitly provides that, on judicial
review of Social Security benefits decisions of the Secretary of
Health and Human Services, the court "may at any time order
additional evidence to be taken before the Secretary, but only
upon a showing that there is new evidence which is material and
that there is good cause for the failure to incorporate such
evidence into the record in a prior proceeding." Complainant has
cited no cases in which that standard, as interpreted and applied
in social security cases, has been applied in other areas. I
note that an element of that standard applied by the courts is
that the remand for additional evidence will not prejudice the
opposing party, and there is a serious question whether that
standard can be met here.
[5] The Secretary decided not to award compensatory damages for
emotional distress and mental anguish because Complainant did not
suffer any drastic change in his financial situation. That
decision was reversed by the court of appeals because the
Secretary did not take into account record evidence, i.e. the
corroborating testimony of family members, that Blackburn's
discharge caused his emotional distress.
[6] I have not considered a declaration of a clinical social
worker which was submitted to the Secretary as an exhibit to
Complainant's Opening Brief on Review and was not part of the
record before the ALJ. See 29 C.F.R. § 24.5(e)(2)
(1991). The Secretary's decision must be based on the record and
the ALJ's recommended decision. 29 C.F.R. § 24.6(b)(1).
[7] Each of the statutes alleged to have been violated here
requires a complaint to be filed within thirty days after the
violation. See 42 U.S.C. § 9610(b) (CERCLA); 15
U.S.C. § 2622(b) TSCA); 33 U.S.C. § 1367(b) (CWA); 42
U.S.C. § 6971(b) (RCRA).
[8] With all due respect to the court of appeals, the
documentary evidence in this case shows that Complainant had
considerably more performance problems than is indicated by
characterizing her evaluations as "mostly satisfactory." In
1984, a year before receiving the marginal rating on a critical
element noted by the court, Complainant's supervisor wrote she
needed improvement on one of only two critical elements in her
performance standards. F.D. and O. at 17. On the evaluation in
1985 in which she received a marginal rating on a critical
element, she also was rated marginal on a non-critical element,
and needed improvement on another non-critical element.
Id. at 18. Complainant refused to sign this
performance evaluation, and just before formally receiving it she
requested a voluntary downgrade and transfer. Id. at 18-
19.
The court of appeals took no note of the fact that
Complainant's new supervisor after her downgrade and transfer
rated her performance overall marginal, including marginal
ratings on two critical elements and one non-critical element.
When Complainant signed this evaluation she noted "I disagree
totally with this appraisal . . . ." Id. at 19-20.
Because Complainant's supervisor found her performance
"marginal," he established detailed controls over each phase of
her work. At the end of the thirty day "progress review" period,
Complainant was rated "doing better" on one performance element,
but one critical element "still need[ed] work." After 60 days,
Complainant's performance was upgraded on one element to
satisfactory, but one critical element was still marginal, and
the overall evaluation remained marginal. Id. at 21.
Complainant filed a grievance over this evaluation and lost, and
her 1986 within-grade increase was withheld. Id. at 22.
Although it is true that "Complainant never received any formal
disciplinary actions during her six-year employment with
[Respondent] until after she engaged in whistle-blowing
activity," 940 F.2d at 1290, denial of a within-grade increase is
a serious negative entry in the record of any federal employee.
All of these performance problems occurred before
Complainant arguably engaged in any protected activity.
[9] In view of my holdings on compensatory and punitive
damages, it is not necessary for me to consider Respondent's
arguments on the authority of the Secretary to award such damages
under the statutes at issue here.
[10] I also note that a survey by the National Law Journal in
1987 of hourly rates for partners and associates in major firms
around the country show that the lowest rate for partners in the
San Francisco Bay Area was $150 an hour. National Law Journal,
November 23, 1987, S-10.
