Nochumson is therefore entitled to recover damages for the financial losses he suffered as a
result of the additional time that he was off work. Obviously, it is impossible to precisely
calculate how much of the lost work time is attributable to the illegal adverse actions and
therefore any award of damages will have to be based on some kind of estimate. In this regard,
the only estimate in the record is Nochumson's testimony that he believes that all but three
months of his lost work time is attributable to the adverse actions. I find this testimony to be
both reasonable and credible and therefore accept Nochumson's calculation of number of weeks
of missed work that can be attributed to the Laboratory's unlawful acts. I therefore find that the
Laboratory should pay Nochumson $18,490 for the lost sick leave, $10,176 for the lost vacation
time, and $31,000 for the difference between his disability benefits and his regular salary.
However, I cannot accept Nochumson's calculation of the value of lost
retirement benefits. In this regard, Nochumson has simply offered the figure of $30,094 without
providing any explanation of how the figure was calculated or any description of any of the
assumptions underlying the calculation. Given the fact that Nochumson's actual retirement
benefits will in all probability be determined by a variety of unpredictable factors, such as his age
at retirement, his final pre-retirement salary, his eventual life span, and the total number of years
that he works for the Laboratory, I find Nochumson's calculation to be too speculative to warrant
a cash award. Rather, I conclude that it would be more just and accurate to simply require the
Laboratory to give Nochumson retirement credit for all periods between October of 1991 and the
present which have not already been credited to him.
The third category of alleged damages is for the cost of medical care,
primarily psychiatric and psychological counselling, that was not covered by Nochumson's
insurance. Nochumson estimates that these costs will total about $7500, assuming one or two
additional years of therapy. Tr. at 187. The Laboratory has not provided any evidence to rebut
this estimate. Accordingly, in the absence of any countervailing evidence, I conclude that
Nochumson should be awarded $7500 for past and future medical expenses.
The final category of damages sought by Nochumson consists of
compensatory damages for emotional distress and anxiety. As previously explained, the law
clearly allows such damages to be awarded to the extent warranted by the facts. As with other
types of damages, a complainant has the burden of proving the existence and magnitude of
subjective injuries as well as the burden of proving that any such injuries were the proximate
result of the respondent's unlawful action. Pogue v. U.S. Department of the Navy, Case
[Page 40]
No. 87-ERA-21, Final Decision and Order on Remand, April 14, 1994. See
also Carey v. Piphus, 435 U.S. 247, 263-64 n. 20. Such proof can be
accomplished by showing the nature and circumstances of the wrong and its effect on the
plaintiff. Id. A complainant, however, need not prove actual financial losses in order to
establish entitlement to damages for emotional distress. Blackburn v. Martin, 982 F.2d
125 (4th Cir. 1992). In determining how much to award in compensatory damages for emotional
distress, the Secretary has attempted to ensure that comparable injuries result in comparable
awards. See, e.g., McCuistion v. Tennessee Valley Authority, Case No. 89-
ERA-6, Decision and Order, Nov. 13, 1991; Lederhaus v. Donald Paschen & Midwest
Inspection Service, Ltd, Case No. 91-ERA-13, Decision and Order, Oct. 26, 1992.
In this case, it is clear that Nochumson suffered emotional distress and
anxiety as a result of the Laboratory's adverse actions against him. This emotional distress and
anxiety is documented in the testimony of Dr. Ross and Dr. Dutcher as well as in Nochumson's
own testimony. It is also illustrated by the fact that during the spring of 1991 Nochumson began
to suspect that was being followed and that someone might be intercepting his mail and
telephone calls. Likewise, the evidence is convincing that the period of time that he was off
work after his wife's death was extended due to job-related anxieties. There is even some
evidence that Nochumson's anxieties may have had some minor physical manifestations. Tr. at
295-96. Accordingly, I find that Nochumson is entitled to an award of compensatory damages
for emotional distress and anxiety.
As previously noted, in awarding damages for emotional distress the
Secretary attempts to ensure that comparable amounts are awarded for comparable injuries. A
review of the cases in which compensatory damages have been awarded for emotional distress
indicates that in recent years many of the awards for such injuries have been at or below $10,000.
See, e.g., Lederhaus v. Donald Paschen & Midwest Inspection Service, Ltd.,
Case No. 91-ERA-13, Decision and Order, Oct. 26, 1992 ($10,000); McCuistion v.
Tennessee Valley Authority, Case No. 89-ERA-6, Decision and Order, Nov. 13, 1991
($10,000); DeFord v. Tennessee Valley Authority, 81-ERA-1, Order on Remand, April
30, 1984 ($10,000); Johnson, et al. v. Old Dominion Security, Case No. 86-CAA-3, 4
& 5, Final Decision and Order, May 29, 1991 ($2,500 for each complainant); Blackburn v.
Metric Constructors, Inc., Case No. 86-ERA-4, Final Order on Compensatory Damages,
Aug. 16, 1993 ($5,000). There are apparently no reported Department of Labor decisions in
which the amounts awarded for emotional distress have exceeded $10,000.
The evidence in the three cases in which the Secretary awarded $10,000
for emotional distress is in many ways similar to the evidence in this case. For example, in the
DeFord case the stress resulting from the complainant's transfer to a less desirable job
caused the complainant to suffer anxiety and depression that was so prolonged that he was still
being treated by a psychiatrist at the time of his hearing. As well, his stress resulted in
complications of a pre-existing heart problem, difficulty in swallowing, nausea and indigestion.
In Lederhaus the complainant was harassed by bill collectors, isolated from family
members, and so depressed and angry that he contemplated suicide. Similarly, in
[Page 41]
McCuistion the complainant suffered from exhaustion, depression, and anxiety, as well
as from an exacerbation of a pre-existing heart condition.
It can be argued, of course, that Nochumson's emotional distress was worse
than that suffered by the complainants in the other cases and that therefore a $10,000 award
would be inadequate. This argument, however, is not convincing. Although Nochumson was off
work for an extended period, he received disability benefits during that period and therefore did
not suffer the financial anxieties of the unemployed complainants in Lederhaus or
McCuistion. Nor is there any convincing evidence that Nochumson suffered a loss of
his personal reputation, as was shown in DeFord. Likewise, although Nochumson's
emotional distress did have some minor physical manifestations, he did not suffer physical
manifestations that were as serious as those described in the DeFord and
McCuistion decisions. Moreover, it must also be recognized that much of
Nochumson's emotional distress and associated psychiatric disability is attributable to his wife's
death and would have therefore occurred even in the absence of any unlawful actions by the
Laboratory. In short, the degree of job-related emotional distress in this case is less than rather
greater than the emotional distress that existed in the other cases. Accordingly, it might appear
that an award of $10,000 in this case would be excessive in comparison with the awards granted
in the other cases. However, consideration must also be given to the fact that the $10,000
awarded to the complainants in the Deford, McCuistion and
Lederhaus decisions would be worth substantially more today if adjusted for inflation.
It must also be recognized that in 1989 the Tenth Circuit held that compensatory damages in a
similar emotional distress case could be as much as $50,000 before becoming unlawfully
disproportionate with awards in comparable cases. Wulf v. City of Wichita, 883 F.2d
842, 874-75 (10th Cir. 1989)(reversing an award of $250,000 and remanding with instructions to
reduce the award to an amount no greater than $50,000). Given these various considerations, I
conclude that the sum of $10,000 would be sufficient to adequately compensate Nochumson for
his emotional distress.
3. Other Forms of Proposed Relief
As previously explained, Nochumson has also requested various other
forms of relief, including an order requiring the Laboratory to provide him with a favorable
performance rating and to expunge negative statements about him from its personnel files. These
requests are justifiable and therefore will be granted. Nochumson's other proposed forms of
relief, however, seem unnecessary. In particular, there has been no convincing reason given for
requiring the Laboratory to publicly post a notice of the relief granted in this case or to notify
witnesses that it is illegal to retaliate against them for testifying in this matter. Similarly, there is
no plausible reason for ordering the Laboratory not to use its Employee Assistance Program as a
tool for illegal retaliation against whistleblowers. Indeed, as previously noted, the Secretary has
recently held that a mere referral of an employee to such a program is not in itself a type of
adverse action.
[Page 42]
4. Costs and Attorney's Fees
Under the provisions of the Clean Air Act a successful complainant is also
entitled to recover reasonable costs and attorney's fees. However, under the provisions of 29
C.F.R. §24.6 (b)(3) such expenses are not recoverable unless and until a final order is
issued in the complainant's favor. Accordingly, the resolution of any dispute over costs or
attorney's fees will be deferred until after the Secretary issues a final order.
RECOMMENDED ORDER
Respondent Los Alamos National Laboratory is ordered to:
1. Reinstate David Nochumson into his former position as manager of the
Laboratory's RAEM program, if he elects such reinstatement.
2. Pay David Nochumson back wages at the rate of $3,000 per year from
the date that Fiscal Year 1992 wage increases went into effect and factor such increases into his
wage base for all future wage increases.
3. Pay David Nochumson $18,490 for lost sick leave, $10,176 for lost
vacation time, and $31,000 for the difference between his disability benefits and his regular
salary.
4. Give David Nochumson retirement credit for all periods since October
of 1991 which have not already been credited to him.
5. Pay David Nochumson $7500 for past and future medical expenses.
6. Pay David Nochumson compensatory damages in the amount of
$10,000 as compensation for emotional distress.
7. Pay pre-judgment interest on the amounts set forth in paragraphs 2, 3,
and 5 in accordance with the rates adopted under 29 C.F.R. §20.58(a).
8. Cease and desist from any further unlawful acts of discrimination
against David Nochumson, provide him with a favorable performance evaluation for the period
he worked as the RAEM manager, and expunge all negative statements about his performance
during that period from the Laboratory's personnel records.
Paul A. Mapes
Administrative Law Judge
Date: September 22, 1994
San Francisco, California
NOTICE: This Recommended Decision and Order and the related administrative file is herewith
being forwarded to the Office of Administrative Appeals, U.S. Department of Labor, Room S-
4309, Frances Perkins Building, 200 Constitution Avenue, N.W., Washington, D.C. 20210. The
Office of Administrative Appeals has responsibility for advising and assisting the Secretary of
Labor in the preparation and issuance of final decisions in employee protection cases adjudicated
under the regulations at 29 C.F.R. Parts 24 and 1978. See 55 Fed. Reg. 13250 (1990).