UNITED STATES DEPARTMENT OF LABOR
OFFICE OF ADMINISTRATIVE LAW JUDGES
Date: March 27, 1996
Case No.: 85-CAA-1
In the Matter of:
DONALD J. WILLY,
Complainant
v.
THE COASTAL CORPORATION AND
COASTAL STATES MANAGEMENT COMPANY,
Respondent
BEFORE: John M. Vittone
Acting Chief Judge
ORDER
The parties' submissions in response to my January 17, 1996
order have been received. Before a recommended order on remand
in this matter is rendered, however, a clarification of several
matters is required.
Scope of relief that recommendation on remand should
address
The January 17, 1996 order limited the matter for briefing
to the question of the calculation of back pay. Review of the
parties' briefs, however, has brought into better focus a problem
in this matter -- the scope of relief that should be considered
on remand.
Although the Secretary's 1994 remand order focused on back
pay, and contained explicit instructions on how back pay should
be calculated, I am now of the opinion that the Secretary's
remand order may not have been intended to exclude consideration
of other types of relief to which the Complainant may be
entitled. The Secretary's order concludes by stating that the
case is remanded "for further proceedings in accordance with this
decision." Willy v. The Coastal Corp., 85-CAA-1, slip
op. at 27 (Sec'y June 1, 1994), motion for reconsideration
denied, (Sec'y July 13, 1995). The Secretary's decision was
that the Complainant was discharged by the Respondent as an act
of
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retaliation prohibited by the employee protection provisions of
the Clean Air Act, 42 U.S.C. § 7622 (1988), the Federal
Water Pollution Control Act, 33 U.S.C. § 1367 (1988), the
Safe Drinking Water Act, 42 U.S.C. § 300j-9(I) (1988), the
Resource Conservation and Recovery Act of 1976, 42 U.S.C. §
6971 (1988), the Toxic Substances Control Act, 15 U.S.C. §
2622 (1988), and the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, 42 U.S.C. § 9610
(1988). The Complainant's argument that those provisions mandate
the award of certain make-whole remedies is well-taken. Indeed,
the Secretary's logic for not accepting Judge von Brand's
recommendation to deny all relief is grounded in large part on
the finding that the Department of Labor has no discretion not to
order certain relief. Thus, although the Secretary's June 1,
1994 order focused almost exclusively on back pay, I find that it
is appropriate in this remand proceeding to permit the parties to
submit argument concerning other forms of relief.
I recognize that to a great extent, the parties have already
stated their positions on other forms of relief. Nonetheless,
because my January 17, 1996 order limited the issue to be briefed
to back pay, the parties will be afforded an opportunity to file
supplemental briefs on other forms and amounts of relief to which
the Complainant may be entitled.
Scope of record on remand
In the January 17, 1996 order, I informed the parties that,
except in regard to reasonable salary increases, I was
disinclined to permit a reopening of the record in this matter.
The parties were instructed to limit discovery to the salary
increase issue, unless permission to inquire into other matters
was granted by this tribunal. The parties were also informed
that any evidentiary submissions other than those relating to
salary increases shall be accompanied by legal argument
explaining why the record should be reopened to receive that
evidence. As I explained in the January 17, 1996 order:
The Secretary has held that the complainant has the
burden at the original hearing of a whistleblower complaint
to prove each element of damage, and that a hearing record
can be reopened to supplement the proof of damages only in
narrow classes of cases. DeFord v. Tennessee Valley
Authority, 81-ERA-1 (Sec'y Aug. 16, 1984); Pogue v.
United States Dept. of the Navy, 87-ERA-21 (Sec'y Apr.
14, 1994). Compare Tritt v. Fluor Constructors,
Inc., 88-ERA-29, slip op. at 3 n.2 (Sec'y Mar. 16, 1995)
(Complainant given second
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chance to establish entitlement to compensatory damages
because he appeared pro se and neither the ALJ nor
opposing counsel asked questions on that issue). I note too
that a Respondent carries the burden of proof on issues of
lack of mitigation concerning back pay awards. West v.
Systems Applications International, 94-CAA-15 (Sec'y
Apr. 19, 1995). Accordingly, the Respondent also carries
the burden of making its record on the issue of damages at
the original hearing.
It is clear from the face of the Secretary's and Judge
von Brand's decisions that both Complainant and Respondent
were represented by counsel, that Complainant is a
sophisticated litigant who should understand the need to
build a complete record at a hearing, and that the issue of
back wages was in fact thoroughly litigated at the original
hearing.
The parties stipulated to the amount of reasonable salary
increases, but both parties also submitted additional evidence
for inclusion in the record. Based on the submissions to date, I
am not convinced that a wholesale reopening the record for
submission of additional evidence on damages is appropriate or
necessary.
The standard for the reopening of a record is stated at 29
C.F.R. § 18.54(c), which provides that "[o]nce the record is
closed, no additional evidence shall be accepted into the record
except upon a showing that new and material evidence has become
available which was not readily available prior to the closing of
the record." Seealso DeFord v. Tennessee Valley
Authority, 81-ERA-1 (Sec'y Aug. 16, 1984); Crosier v.
Westinghouse Hanford Co., 92-CAA-3 (Sec'y Dec. 8, 1994);
Hasan v. Nuclear Power Servs., Inc., 86-ERA-24 (Sec'y June
26, 1991); Bassett v. Niagara Mohawk Power Corp., 85-ERA-
34 (Sec'y Sept. 28, 1993).
The Respondent has now submitted copies of the Complainant's
tax returns for the years 1984 through 1988, and Complainant does
not object to their admission into the record. The matter of the
Complainant's earnings subsequent to his discharge by the
Respondent only became a focal issue after the completion of the
oral evidentiary hearing. Because the Complainant appears to
have been less than forthcoming in deposition testimony, the
Respondent did not know that the Complainant was employed by
Merichem until after formal discovery had long passed, and I find
that the tax returns should be considered records that were not
readily available prior to the close of the record, and that they
are material evidence that should be considered in the
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calculation of back pay. See 29 C.F.R. § 18.54(c).
These records are received into evidence collectively as
Respondent's Remand Exhibit (RRX) 1.
The Complainant submitted the following as evidentiary
supplements:
(1) Deposition of Barry Wilbratte dated January 7, 1988,
with exhibits
(2) A package containing
--Departmental Correspondence dated August 23, 1984,
September 25, 1984, September 24, 1981
--A letter of recommendation dated October 9, 1984
--A letter from the Department of Energy to the
President of Coastal Corporation dated June 22, 1983
--Affidavit of Donald J. Willy dated May 19, 1988, May
28, 1988, May 20, 1991, and August 19, 1992.
(3) Exhibits to Deposition of Herbert L. Lyon, dated June
8, 1994.
The Complainant's argument as to why this information should be
received into evidence is essentially that he is entitled to
submit evidence on relief to which he is entitled. The
Complainant noted that many of the documents may already be in
the record, but could not mark them as such because he does not
currently possess a copy of the record from 1988. The Respondent
does not object to the addition of Mr. Wilbratte's deposition
with exhibits to the record. It opposes receipt of the package
of letters, memos and affidavits, and to the Lyon deposition
exhibits.
Since the Respondent does not object to receipt of the
Wilbratte deposition, it will be received into evidence as
Complainant's Remand Exhibit (CRX) 1. As to the other proposed
exhibits, the Complainant's submission did not address standards
for reopening the record. The fact that the Complainant may have
been entitled to put on evidence such as the proposed exhibits at
the original hearing does not establish an entitlement to reopen
the record. Accordingly, the proposed additions to the record --
specifically the package of letters, memos and affidavits, and
the Lyon deposition exhibits -- will not be considered in my
recommended order.[1]
Petition for fee and costs[PAGE 5]
The Complainant submitted affidavits in support of
attorney's fee and expenses. These affidavits are permitted
pursuant to 29 C.F.R. § 18.54(c). Because my January 17,
1996 order did not discuss whether a fees and costs petition
would be permitted, the Complainant will be afforded the
opportunity to supplement these affidavits. The Respondent's
request for attorney's fees is denied as they are not authorized
by statute. See Tennessee Valley Authority v. Reich, No.
92-3977, 1994 U.S. App. LEXIS 13255 (6th Cir. June 1,
1994)(unpublished); Saporito v. Florida Power & Light Co., 90-ERA-27, 47 (Sec'y Aug. 8, 1994); Crosby v. Hughes
Aircraft Co., 85-TSC-2 (Sec'y Aug. 1, 1993); Rodgers v.
Multi-Amp Corp., 85-ERA-16 (Sec'y Dec. 18, 1992); Hasan v.
Nuclear Power Servs., Inc., 86-ERA-24 (Sec'y June 26, 1991).
The Respondent may submit a fee petition for inclusion in the
record on review, however, I will not make any further rulings on
any such petition.
Discovery
As mentioned above, the January 17, 1996 order, limited
discovery on remand to the salary increase issue, unless
permission to inquire into other matters was granted by this
tribunal In respond to a motion by the Respondent, I issued a
February 7, 1996 order directing the Complainant to show cause
why he should be permitted to pursue discovery relative to
certain items in a discovery request that did not appear to be
related to the issue of salary increases. The Respondent was
permitted to decline to respond to those requests until and
unless otherwise ordered to do so by this tribunal. The original
period for completion of discovery has long passed.
Complainant's response explained that the sought-after
information was "needed to formulate a suggested award and
argument on exemplary, compensatory, and other statutorily
permitted damages, as well as to counter anticipated
arguments against the viability of raises and other components of
damages." Complainant's February 10, 1996 Response at 2.
There is no dispute that the relevant environmental statutes
permit or require payment of compensatory damages to a
complainant who is successful on the merits. Further, several
relevant environmental statutes permit an award of exemplary
damages "if appropriate." The issue is not whether the
Complainant should be entitled to discovery about these
matters,[2] but whether he is still entitled to discovery after
the case has been fully heard on the merits and the record
closed. Nothing in this record establishes a justification to
permit additional discovery. Accordingly, Complainant's
discovery request for the
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subject items is denied.
ORDER
IT IS ORDERED THAT
(1) The record in this matter is closed. No further
evidentiary submissions will be considered.
(2) The parties may file supplemental briefs addressing any
matters relative to damages prompted by this clarifying
order on or before twenty days from the date of this
order.
(3) The Complainant may file a supplemental fee and cost
petition on or thirty days from the date of this order.
The Respondent shall file any response to the fee and
cost petition on or before 45 days from the date of
this order.
At Washington, D.C.
_________________________
John M. Vittone
Acting Chief Judge
JMV/trs
[ENDNOTES]
[1] If an identical document is already contained in the record
made before Judge von Brand, it will be fully considered.
[2] I also note that the Respondent has not raised the
"viability" defenses suggested by the Complainant, and therefore
this justification for the discovery request is moot.
