Because Judge von Brand did not make a finding on what salary increases,
if any, the Complainant would have been reasonably entitled to if he had continued to work for
the Respondent during the period between his discharge and his termination of employment with
Merichem, I permitted the parties to supplement the record in this regard based on Mosbaugh
v. Georgia Power Co., 91-ERA-1 and 11 (Sec'y Nov. 20, 1995). I also encouraged the
parties to attempt to stipulate to this amount.
The parties evidently discussed a stipulation of an 8.32% as a reasonable
annual salary increase for purposes of calculation. Mr. Willy, however, wished to add a
stipulation that, "The parties are making no stipulation concerning promotion, and any
further pay increases which may result therefrom." There is no indication in the record that
the parties came to any final stipulated language, although Mr. Willy did use a 8.3% figure in his
Brief on Back Pay and Damages.
Because the parties did not reach a final stipulation on reasonable annual
salary increases, I must make a finding of fact in this regard. Respondent contends that 8.32% is
a reasonable calculation because "Willy testified that his salary for 1984 was between
$57,000.00 and $58,000.00 (TR. 137). Willy testified that he had been told that his salary was to
[Page 4]
increase to $62,200.00 in 1985 (TR. 188)." Brief at 4. Complainant states that his
"salary increase history, as well as that of most Coastal employees, demonstrates annual
increase approximating ten percent." Brief at 5. Complainant, however, did not cite any
portion of the record to support this assertion, and I find none in the record. Based on the record
before me, I find that Respondent's method for calculating reasonable annual salary increases
reflects the best indication of what the increases would likely have been. Thus, I find that
Complainant's reasonable annual salary increases would have been 8.32%, which is, of course,
the amount to which the parties almost stipulated.
At 8.32% for salary increase, Mr. Willy's yearly earnings if he had stayed
at Coastal Corporation, and not been promoted, would have been:
1984 - $57,420.00
1985 - $62,197.34
1986 - $67,372.16
1987 - $72,977.52
1988 - $79,049.25
Promotions
Mr. Willy started work for Respondent in May 1981. Von Brand Finding
of Fact 1. Thus, it is not inconceivable that he may have been promoted prior to May 1988, but
whether he would have been is far too speculative to determine. I find insufficient evidence in
this record to support a finding that Mr. Willy would have gotten a promotion or how much
money that would have entailed.
Award for Back Wages and Benefits
Mr. Willy is entitled to $131,719.04 for back wages owed and $53,465.47
for benefits owed, plus interest. The calculation of these awards may be found in Appendix A of
this Recommended Decision and Order.
III. Exemplary Damages
Complainant has requested imposition of exemplary damages in the range
of three times the actual damages to one million dollars. Donald J. Willy's Brief on Back Pay
and Damages at 14-15. In Johnson v. Old Dominion Security, 86-CAA-3 (Sec'y May 21,
1991), the Secretary of Labor addressed exemplary awards in whistleblower cases:
Exemplary awards serve in punishment for wanton or reckless conduct to
deter such conduct in the future. The Restatement (Second) of Torts § 908 (1979)
describes a two-step analysis. The threshold inquiry centers on the wrongdoer's state of
mind: did the wrongdoer demonstrate reckless or callous indifference to the legally
protected rights of others, and did the wrongdoer engage in conscious action in deliberate
disregard of those rights. The "state of mind" thus is comprised both of intent
and the resolve actually to take action to effect harm. If this state of mind is present, the
inquiry proceeds to whether an award is necessary for deterrence.
1Page citations to DOL decisions in
this
recommended order are to decisions reported on the Internet by the OALJ Law Library
(www.oalj.dol.gov). A Web
site page number citation is preceded by an "@".
2Administrative Law Judge
Theodore
von Brand originally presided over this matter, but had retired by the time that the Appeal File
was returned to the
Office of Administrative Law Judges in December 1995. For a short period, this matter was
reassigned to
Administrative Law Judge Charles P. Rippey. Judge Rippey was assigned because he had nearly
cleared his docket
in anticipation of retirement, and was available to give immediate attention to this matter,
whereas my docket and
administrative duties were both heavy. The reason for the reassignment, however, had not been
explained to
Complainant, who objected to the reassignment; accordingly the matter was returned to the
undersigned's docket.
The only substantive order issued by Judge Rippey was his request for clarification by the
Secretary; see Willy v.
The Coastal Corp., 85-CAA-1 (ALJ June 19, 1996), the clarification order was decided in
Complainant's favor.
See Willy v. The Coastal Corp., 85-CAA-1 (ARB July 1, 1996). Further, the Board's
clarification order was
consistent with my earlier ruling in the Order dated March 27, 1996. See Willy v. The
Coastal Corp., 85-CAA-1 (ALJ July 1, 1996). Thus, I ratify, nunc pro tunc, the
orders issued by Judge Rippey during his brief
assignment to this matter.
3Mr. Willy's complaint in this
matter,
which arises in a jurisdiction covered by Fifth Circuit law, was completely internal in nature.
Willy v. The
Coastal Corp., 85-CAA-1 @ 8 (Sec'y June 1, 1994). The Fifth Circuit determined in
Brown & Root, Inc. v.
Donovan, 747 F.2d 1029 (5th Cir. 1984), that internal complaints are not covered by the
whistleblower
provision of the Energy Reorganization Act. The ERA was amended in 1992 to overrule this
decision legislatively.
Mr. Willy's complaint was not based on the ERA, but several environmental whistleblower
provisions, which were
not amended, and which contain language relevant to the Brown & Root analysis that is
virtually identical
to the pre-1992 ERA.
Secretary Robert B. Reich recognized in Grover v. Houston Lighting
& Power, 93-ERA-4 (Sec'y Mar. 16, 1995), that Brown & Root controls in the Fifth
Circuit, citing Goldstein v.
Ebasco Constructors, Inc., 86-ERA-36 (Sec'y Aug. 16, 1993). This acquiescence in
Brown & Root
occurred after Secretary Reich's remand order in Willy v. The Coastal Corp., 85-CAA-1
(Sec'y June 1,
1994), in which the Secretary had rejected Respondents' internal complaint argument, finding
that it had already
been decided in Willy v. The Coastal Corp., 85-CAA-1 (Sec'y June 4, 1987), and that
Brown &
Root only applies to the ERA. In Secretary William E. Brock's June 4, 1987 remand order,
he had
"respectfully decline[d] to follow the Fifth Circuit's decision in Brown &
Root", and specifically
invited the Fifth Circuit to reconsider its decision. Secretary Reich's rationale that Brown &
Root applies
only to the ERA was a new one -- it was not a ground stated in Secretary Brock's 1987 decision.
If Grover had been the Secretary's last ruling on the internal
complaint issue
acquiescing in Brown & Root, I would have found that this was intervening, controlling
law that required
adoption of Judge von Brand's original 1985 recommended decision dismissing this complaint
based on Brown
& Root, seeWilly v. The Coastal Corp., 85-CAA-1 @ 4 (ALJ May 6, 1985)
("Brown
& Root makes it clear that the Fifth Circuit would apply the same narrow construction to the
statutory provisions
applicable to this proceeding"), and therefore recommended dismissal of the remand
proceeding as moot.
In Carson v. Tyler Pipe Co., 93-WPC-11 (Sec'y Mar. 24, 1995),
however, Secretary
Reich held that internal complaints are protected activity under the SWDA and the FWPCA even
in the Fifth Circuit.
The Secretary distinguished Brown & Root based on the 1992 amendments to the ERA,
which legislatively
overturned that decision. Similarly, in Hermanson v. Morrison Knudsen Corp.,
94-CER-2 @ 5 (ARB June
28, 1996), the Administrative Review Board held that "[i]nternal safety complaints are
covered under the
environmental whistleblower statutes in the Eighth Circuit, the Fifth Circuit and every other
circuit. See Amendments
to the ERA in the Comprehensive National Energy Policy Act of 1992 (CNEPA), Pub. L. No.
102-486, 106 Stat.
2776." The Board noted that "[t]he only current exception to this rule is for cases
filed in the Fifth
Circuit under the Energy Reorganization Act of 1974 (ERA), as amended, 42 U.S.C. §
5851 (1988), prior to
October 24, 1992." Id. @ 5 n.4.
Since Carson and Hermanson indicate that Brown &
Root is not to
be applied to any non-ERA statutes, I find that Grover does not moot this remand
proceeding.
4Unemployment compensation is
not
deducted from a back pay award. Artrip v. Ebasco Services, Inc., 89-ERA-23 (ARB Sept.
27, 1996) (in Fifth
Circuit, deductibility of unemployment compensation is left to discretion of trial court; ARB
holds that consistent
with prior holding of Secretary of Labor, it will not deduct unemployment benefits from gross
back pay award);
Williams v. TIW Fabrication & Machining, Inc., 88-SWD-3 (Sec'y June 24, 1992).
5Pension income received by a
complainant during a back pay period from another source, as opposed to earnings from
alternative interim
employment, are not deducted from back pay awards. Artrip v. Ebasco Services, Inc.,
89-ERA-23 (ARB
Sept. 27, 1996). Mr. Willy's 1987 tax return indicates that $3950.08 of the amount reported as
"wages,
salaries, tips, etc." was a pension refund. It is likely that a pension refund at this time
period would have been
from a collateral source rather than resulting from alternative interim employment. Since
uncertainties in calculating
a back pay award are resolved against the discriminating party, Johnson v. Bechtel
Construction Co., 95-ERA-11 (Sec'y Sept. 11, 1995), and the burden is on the discriminating
party in regard to issues of mitigation of
damages, West v. Systems Applications International, 94-CAA-15 (Sec'y Apr. 19, 1995),
I have not included
the pension refund amount as part of the calculation of interim employment
6Pogue v. U.S. Dept. of the
Navy, 87-ERA-21 (Sec'y Apr. 14, 1994) (punitive damages not awarded where the
complainant's prior work
evaluations all indicated either satisfactory or marginal performance, and she had a history of
problems with both
work performance and getting along with co-workers; the employer had mixed motives for the
actions taken against
the complainant). See alsoJenkins v. United States Environmental Protection
Agency, 92-CAA-6
(Sec'y May 18, 1994) (requisite state of mind for exemplary damages not available where
Respondent found to have
punished whistleblowers by removing them from assignments and transferring them to
undesirable positions,
carefully scrutinized the complainant's actions in an attempt to find a legitimate basis for its
retaliation); Johnson
v. Old Dominion Security, 86-CAA-3 (Sec'y May 21, 1991) (exemplary damages not
appropriate where
Respondent merely exhibited indifference to the public health purposes of the TSCA in its
treatment of
Complainants; bare statutory violation is insufficient to substantiate such an award).
7For example, the existence of tax
shelters, the possibility of the plaintiff filing a joint return with a spouse, etc.
8Complainant also requests that
interest
on any compensatory damages be awarded. Interest is not awarded, however, on compensatory
damages. Smith
v. Littenberg, 92-ERA-52 (Sec'y Sep. 6, 1995).
9Complainant contends in his
Supplement Brief of April 15, 1996 that pre-judgment interest should be compounded either
yearly or quarterly
based on WMATA, 84-OFC-8 (Ass't Sec'y Aug. 23, 1989). WMATA does
contain the statement that
"Defendant's exceptions that prejudgment interest should not be compounded and that it
was improper to
compound it more than once a year are granted." Id. @ 9. Reading the entire
decision in context
(including the subsequent decisions in the matter WMATA, 84-OFC-8 (Ass't Sec'y Nov.
17, 1989) and
WMATA, 84-OFC-8 (Ass't Sec'y Nov. 14, 1990)), however, it is clear that the Assistant
Secretary's decision
was that there should be no compounding of interest, and that the sentence quoted above
should not be
construed as directing yearly compounding, but merely a summary of the defendant's argument
in that case.
10I recognize that the
pre-judgment
interest award in this matter is the dominate element of the total damage award. A
discriminating party, however, is
not to be relieved of interest on a back pay award because of the time elapsed during adjudication
of the complaint.
Blackburn v. Metric Constructors, 86-ERA-4 (Sec'y Oct. 30, 1991).