It is therefore unnecessary to deal further
with the merits of this case.
III. REMEDY .
A. Reinstatement .
The ALJ concluded that Complainant was entitled to an offer of
reinstatement to his former position as a bus driver. Although Complainant testified that
Schaeneman promised him full-time employment by the summer, the ALJ refused to order full-time reinstatement. Crediting the testimony of William Schasneman, Respondent's president, the
ALJ found that Complainant was hired solely as a part-time driver and that Respondent never
offered Complainant a full-time job. The ALJ found it difficult to believe that an offer of full-time employment to begin five months later would have been made at the time a part-time driver
was hired and before he had demonstrated that he was a desirable employee. I accept the ALJ's
credibility finding as it is fully explained and supported by substantial evidence in the record as a
whole. See Tr. at 83-84; Ertel , slip op. at 12, n.7. I further agree with the
ALJ's conclusion that the possibility that Complainant would have been promoted to full-time
employment had he not been discharged is too speculative to require an offer of full-time
employment.
B. Back pay .
The ALJ declined to award back pay. He found that, during his work
for Respondent, Complainant also worked for two other bus companies, and that the record failed
to show the hours Complainant worked or the wages he earned at these two other employers after
his discharge by Respondent. The ALJ reasoned that, because Complainant might have increased
his work hours at these other employers to replace hours lost with Respondent, Complainant
failed to meet his burden of proving lost wages resulting from his discriminatory
discharge.
The Assistant Secretary contends that the ALJ incorrectly allocated the
burden of proving mitigation of damages to the Assistant Secretary and Complainant when that
burden properly lies with Respondent. I agree.
While Complainant bears the initial burden of proving lost wages, the
ALJ has misconstrued the nature of that burden. Hufstetler v. Roadway Express. Inc. ,
Case No. 8S-STA-8, Sec. Final Dec. and Order, August 21, 1986, slip op. at 52, aff'd
sub nom. Roadway Express, Inc. v. Brock , 830 F.2d 179
(llth Cir. 1987). A Complainant need present evidence only of gross back pay, i.e. ,
what he would have earned with the Respondent had he not been unlawfully discharged.
Id . The Respondent then bears the burden of establishing any
deductions from gross back pay, such as interim earnings or amounts earnable with
reasonable diligence. Nelson v. Walker Freight Lines. Inc.. d/b/a Package
Express, Case No. 87-STA-24, Sec. Dec. and Order of Remand, January 15, 1988, slip op.
at 7; Hufstetler , slip op. at 53. See also , e.g. , Rasimas
v. Michigan Dept. of Mental Health , 714 F.2d 614, 623-624 (6th Cir. 1983);
EEOC v. Kallir. Philips Ross. Inc. , 420 F. Supp. 919, 924 (S.D.N.Y. 1976), aff'd
without op. , 559 F.2d 1203 (2d Cir. 1977), cert. denied , 434 U.S. 920 (1977).
Consequently, the ALJ erred in concluding that Complainant failed to meet his burden of proof
simply because the record is devoid of evidence of interim, i.e. , post-discharge earnings
from his employment with the other two bus companies.
The record contains sufficient evidence of Complainant's gross back
pay. The Assistant Secretary urges that Complainant's lost wages should be the average of his
total gross earnings while at Respondent, or $117.03 per week. Respondent does not dispute this
figure, except to argue that any projection would be speculative. That future lost wages cannot be
exactly determined, however, does not defeat an award. Rather, any uncertainty should be
resolved against the unlawfully discriminating employer. See Rasimas , 714
F.2d at 628; EEOC v. Enterprise Ass'n Steamfitters , 542 F.2d 579, 587 (2d Cir. 1976),
cert. denied , 430 U.S. ill (1977); Palmer v. Western Truck Manpower. Inc. ,
Case No. 85-STA-16, Sec. Final Dec. and Order on Damages and Attorney Fees, June 26, 1990,
slip op. at 4-5, appeal docketed , No. 90-70430 (9th Cir. Aug. 24, 1990). Since the
weekly $117.03 submitted by the Assistant Secretary is fully supported by the record,
accommodates the intermittence of Complainant's employment, and is otherwise reasonable, it is
accepted.
As to deductions, it is not clear whether Respondent may have been
misled by the hearing judge regarding its burden to adduce specific proof of the deductions.
See Tr. at 83. Since the record reveals some evidence of other post-discharge
employment of Complainant, and since Respondent may have been misled as to its burden, I will
remand this limited deduction issue to the ALJ. I note that only such post-discharge earnings as
Complainant could not have earned had he remained working as a part-time employee at
Respondent may be deducted from the weekly $117.03. See Nelson , slip op.
at 5.
C. Compensatory damages.
Complainant also requested reimbursement for certain medical
expenses. He testified that Schaeneman promised to pay them, and that they arose because he
was required to make a trip while ill with the flu. The ALJ denied this request, because the
evidence assertedly failed to establish Respondent's commitment. I hold that Complainant's
request must be denied for another reason - - the STAA does not provide for such damages.
Although Section 2305(c)(2)(B) explicitly provides for compensatory damages, the medical
expenses requested by Complainant herein did not result from the wrongful discharge and,
therefore, do not constitute Compensatory damages properly payable by an employer who
violated the STAA. See Hufstetler , slip op. at 52.5
D. Attorney Fee .
Finally, I conclude that Complainant is entitled to payment of the
attorney's fee requested at the hearing. See Tr. at 76. Complainant testified that he
sought legal counsel in this case and was charged a consultation fee, which he
"believed" was $25. That testimony is unrefuted. While no counsel appeared of
record for Complainant herein, I accept Complainant's testimony and conclude that he is entitled
to the fee requested as an "expense[] . . . reasonably incurred . . . [in] bringing the
complaint . . . ." 49 U.S.C. § 2305(c)(2)(B). See 29 C.F.R. §
1978.109(a); cf . Palmer , slip op. at 12.
ORDER I accept the ALJ's recommended decision that Respondent violated
Section 2305 of the STAA and that Complainant As therefore entitled to an offer of part-time
reinstatement. I also accept, as modified, the ALJ's finding that Complainant is not entitled to the
"compensatory" medical expenses requested. I also conclude that Complainant is
entitled to the attorney fee requested.
Accordingly, it is ORDERED that Respondent shall:
1. Unconditionally offer to Complainant reinstatement to his former
position as a part-time bus driver;
2. Expunge from Respondent's records all material and references
relative to Complainant's discharge;
3. Pay to Complainant the sum of $117.03 per week (less any
applicable deductions) as back pay from March 7, 1989, the date of discharge, until such time as
Respondent reinstates Complainant or makes him a bonafide offer of reinstatement;
4. Pay to Complainant interest as approved herein on the back pay due
until the date of payment; and
5. Pay to Complainant the sum of $25.00 for an attorney fee incurred.
This case is REMANDED to the ALJ for an evidentiary hearing on the
amount, if any, of deductions from gross back pay which should be made. It is expected that this
hearing shall be held and an appropriately revised recommended decision proffered by the ALJ
within 90 days of the date of this Decision and Order.
SO ORDERED.
Acting Secretary of Labor
Washington, D.C.
[ENDNOTES]
1
2
3
4 see McGavock v. Elbar. Inc. , Case No. 86-STA-5, Sec. Final Dec. and Order,
July 9, 1986, slip op. at 10-11, I conclude that Complainant has met his ultimate burden of proof
through direct evidence establishing that Respondent unlawfully discharged him in whole
because of protected conduct. See generally Ertel v. Giroux Brothers
Transportation, Inc. , Case No. 88-STA-24, Sec. Final Dec. and Order, February
16, 1989, slip op. at 32; McGavock , slip op. at 12.
5
Compensatory
damages. Compensatory damages are such as will compensate the injured party for the injury
sustained, and nothing more; such as will simply make good or replace the loss caused by the
wrong or injury. Damages awarded to a person as compensation, indemnity, or restitution for
harm sustained by him.
Black's Law Dictionary 352 (5th ed. 1979).
