Date: December 13, 1994
Case No: 92-ERA-52
Richard G. Smith
COMPLAINANT
against
Richard L. Littenberg, MD and
Honolulu Medical Group
RESPONDENTS
Appearances:
Michael A. Lilly, Esq.
For Complainant
Robert S. Katz, Esq.
Richard M. Rand, Esq.
For the Respondents
Before: DAVID W. DI NARDI
Administrative Law Judge
RECOMMENDED DECISION AND ORDER
This case arises under the Energy Reorganization Act of 1974
as amended, 42 U.S.C. § 5851 ("Act" or "ERA"), and the
implementing regulations found in 29 C.F.R. Part 24, whereby
employees of licensees or applicants for a license of the Nuclear
Regulatory Commission and their contractors and subcontractors may
file complaints and receive certain redress upon a showing of being
subjected to discriminatory action for engaging in a protected
activity. The undersigned conducted hearings in Honolulu, Hawaii,
on June 29 and 30, 1994, at which time the parties were given the
[PAGE 2]
opportunity to present oral arguments, their witnesses, and
documentary evidence.[1]
Procedural History
On May 22, 1992, Richard G. Smith (or "Complainant" herein)
was discharged from Honolulu Medical group (HMG) by Respondent Dr.
Richard L. Littenberg. Thereafter on June 15, 1992, Smith filed a
complaint under the ERA with the Department of Labor, and the
complaint was investigated under the regulations contained in 29
C.F.R. Part 24.
After the completion of the investigation, and pursuant to the
regulations, on August 14, 1992, the District Director, the
Employment Standards Administration advised the parties that "the
weight of evidence to date indicates that Smith was a protected
employee engaging in a protected activity within the scope of the
ERA and that discrimination was a factor in the actions which
comprise this complaint." That finding ordered HMG to reinstate
Smith and to pay Smith back wages in the amount of $6,240.00. (CX
12)
HMG, believing that only it as the Respondent, and not Smith
as the prevailing party, had a right to request a hearing, decided
not to contest the District Director's determination and did not
request a hearing.
However, Smith, by telegram dated August 22, 1992, requested
a hearing. On August 26, 1992, HMG sent a telegram objecting to
Smith's request for a hearing on the grounds that the regulations
provided that where a violation was found only the Respondent could
request the hearing.
After Administrative Law Judge ("ALJ") Robert T. Mahony issued
a Recommended Decision and Order Granting Respondents' Motion to
Dismiss on June 30, 1993, the Secretary of Labor, after reviewing
the record, issued a Decision and Remand Order ("Remand Order")
wherein the Secretary concluded that Smith did have the right to
request a hearing and remanded the matter to the Office of
Administrative Law Judges to conduct a hearing "limited to the
issue of the remedies to which Complainant is entitled under the
ERA." The Secretary's mandate prohibits Respondents from
litigating the issues of liability as the Secretary has concluded
that Respondents had waived their right to contest liability.
Respondents have properly preserved their right to challenge
the Remand Order and the Secretary's mandate in any appropriate
[PAGE 3]
forum and have not waived any rights by participating in this
proceeding.
Pursuant to the Secretary's Remand Order, a hearing was held
before the undersigned and the scope of the hearing was limited to
the issue of the remedies available to the Complainant, in
accordance with the Secretary's mandate.
Smith presented testimony from himself, Terry Ichinose, Scott
Dube, April Ferrer, Dr. Littenberg and David Tajima. Respondents
cross-examined all the witnesses and both sides were given the
opportunity to present testimony and documentary evidence.
At the commencement of the hearing, Smith waived any claim for
backpay for the period after August 1, 1993. In addition, Smith
agreed that HMG would be entitled to offset, against any backpay
award for the period prior to August 1, 1993, the amounts he had
received in workers' compensation indemnity benefits from HMG's
insurance carrier. Those amounts are set forth in RX 1 and
totalled $26,969.15. Smith argues that he is entitled to the
difference in the salary he would have received from HMG and the
amount of his workers' compensation benefits, whereas HMG contends
that because Smith was disabled prior to his discharge for reasons
unrelated to his discharge, he is not entitled to any back wage
award whatsoever.
As discussed further below, Complainant injured his back on
May 15, 1992 while lifting a patient. Smith testified that as a
result of this injury he became disabled from working and could not
work at HMG commencing on his next regularly scheduled day of work,
May 18, 1992. Smith has stipulated with the State of Hawaii that
he was disabled from May 21, 1992 through July 26, 1993. Neither
party challenges Smith's disability.
Post-hearing evidence has been admitted as follows:
EXHIBIT NO ITEM FILING DATE
CX 27 Complainant's brief 9/29/94
RX 7 Respondents' brief 9/29/94
RX 8 Respondents' reply brief on 10/12/94
the issue of compensatory
damages
[PAGE 4]
The record was closed on October 12, 1994 as no further
documents were filed.
SUMMARY OF THE EVIDENCECOMPLAINANT'S VERSION
Complainant alleges that he was engaged in protected activity,
that the Respondents knew of this fact and that, nevertheless, he
was still terminated by the Respondents in a discriminatory
discharge. Complainant had sustained a work-related injury on May
15, 1992, a Friday, was unable to work on the following Monday, May
18th and he so advised Respondents' office early on that morning.
He was unable to work the next day and timely notified the office
of his absence. The radionuclide scanning of patients resumed the
next day and Complainant, having learned that unqualified
substitute personnel, were participating in those tests, wrote a
letter about those procedures and in that letter he was critical
about HMG and Dr. Richard L. Littenberg, especially the doctor's
attitude toward him. The doctor reacted strongly to the letter and
terminated Complainant because he had abandoned his job and because
of his inability to get along with his co-workers.
Complainant seeks an award of back pay from May 22, 1992, the
date of his termination, to August 1, 1993, at which time he found
work at the Castle Medical Center in Honolulu. Complainant also
seeks an order directing Respondents to expunge negative references
in his personnel file and to advise the NRC and other entities of
incorrect statements made in certain letters and other documents.
He also seeks an award of medical benefits for the psychiatric
treatment for his depression and emotional distress resulting from
his discriminatory discharge. He also seeks reinstatement with
Respondents and he believes that he will be able to work with Dr.
Littenberg and other personnel at HMG.
As already indicated above, Complainant seeks compensatory
damages for the depression and emotional stress caused by his
discriminatory discharge by the Respondents and he alleges that
such damages should be calculated based upon the Hawaii state
minimum wage rate of $5.25 per hour for twenty-four hours each day
[PAGE 5]
from May 22, 1992, the date of his illegal termination, to June 29,
1994, the day of his hearing before this Administrative Law Judge,
i.e., $5.25 x 24 x 768 days or $96,768.00.
RESPONDENTS' VERSION
Respondents submit that this complaint should be denied
because Complainant's disability status necessitated his
termination by HMG because he was unable to work at HMG or anywhere
else, irrespective of whether he had been terminated on May 21,
1992, and because there is no causal relationship between his
disability and Respondents' termination of Complainant. However,
that termination has already been found to violate the ERA, and
that finding is binding upon the parties at the Office of
Administrative Law Judges.
Respondents further point out that, on or about August 1,
1993, Smith began working for Castle Medical Center replacing
another employee who was on maternity leave. Smith has been
continuously employed since that time, although not always in a
full time capacity. Smith has been able to work since that time
and he would not have earned any compensation from HMG for the
period May 15, 1992 through July 27, 1993, regardless of his
discharge from HMG, because he was out on disability. Smith did
not present any evidence that would allow this Administrative Law
Judge to attribute his May 15, 1992 injury to any improper actions
by HMG, according to Respondents.
After his discharge from HMG, Smith was examined on August 20,
1992, by Dr. Robert Marvit and, on September 22, 1992, by Dr. Mark
Stitham. Dr. Marvit recommended psychiatric treatment to cope with
his psychological symptoms. However, Dr. Stitham opined that Smith
was not in need of psychiatric treatment and opined that he was not
disabled from working. Smith presented no testimony or evidence
that he has received or sought psychiatric treatment after Dr.
Stitham's November 6, 1992 opinion. There is no evidence in this
record that Smith has voluntarily obtained psychiatric treatment
since his discharge from HMG. Despite the lack of psychiatric
intervention, Smith returned to work as soon as he was physically
able to do so.
On April 20, 1994, Smith was re-examined by Dr. Marvit,
apparently for the purposes of this proceeding, as the doctor had
not seen Smith since his August 1992 examination. At the hearing,
Smith testified that he has been suffering from potentially life-
threatening illness. However, that diagnosis is not reflected in
Dr. Marvit's August 1992 report or his April 1994 report.
[PAGE 6]
The doctors agreed that Smith was having trouble adjusting to
his inability to work or to participate in many recreational
sporting events, as he formerly did; however, the reason therefor
is in dispute.
Respondents also submit that during the course of his
employment, Smith had numerous disagreements with Littenberg about
pay and Smith's interaction with other employees of HMG.
Respondents point to documents in evidence which show that
Littenberg constantly had to admonish Smith about his interaction
with other employees. Ms. April Ferrer, called as a witness by
Smith, admitted that Smith's reputation for having difficulties in
working harmoniously with other employees was well known throughout
HMG, according to Respondents.
When Smith was hired, there was more demand for nuclear
medicine technologists than supply. Accordingly, a certified
technologist such as Smith could demand a premium and could dictate
his/her working conditions. When Smith was originally hired by
HMG, he was administratively supervised by the Director of Nursing.
All non-physician staff of HMG are administratively, as
distinguished from clinically, supervised by either the Director of
Nursing or the Administration Department. Littenberg changed that
relationship when Smith vehemently protested being supervised at
all by the Director of Nursing and threatened to quit. That change
reflected HMG's need to retain Smith and is not an admission that
the Director of Nursing was administratively unqualified to
supervise Smith.
Respondents point to a meeting on May 11, 1992, at which time
Littenberg and Smith met to discuss Smith's request for a pay
raise. During that conversation, Littenberg counseled Smith about
his interaction with other employees, warning him that he was
adversarial and short-tempered. Smith responded by blaming any
problems on other employees. Littenberg warned Smith that he
needed to improve his interaction with other employees or face
disciplinary action, according to Respondents.
As a result of these problems with Smith, HMG had been
actively seeking to hire a nuclear medicine technologist. Sandra
Monzingo, who was ultimately hired for the position, had applied
pursuant to an advertisement in the local newspaper by letter dated
May 7, 1992.
David Tajima had been hired by HMG in September of 1991, to
assist Smith and Littenberg contemplated that he would be trained
[PAGE 7]
to perform many of Smith's duties, except those which by regulation
may not be performed by Tajima. Specifically, Tajima would not
inject patients with the radioactive isotopes and would not
interpret the scans taken because that function was performed only
by Littenberg. Tajima, however, could and was trained to perform
the weekly "wipe" of the machine to make sure that there were no
radioactive materials present, could measure the radioactive
isotopes which had been received in the pharmacy and could do other
functions as taught to him by Smith. Respondents submit that the
testimony of Littenberg, Tajima and Radiation Safety Officer
("RSO") Scott Dube, leads to the conclusion that when Tajima was
hired it was contemplated that he would function as Smith's
assistant and would perform many of Smith's functions when Smith
was unavailable for work.
Prior to May 1992, Tajima had been taught to do the wipe,
certain calibrations and other tasks which Smith also performed.
Tajima was never taught and was never asked to inject patients with
the isotopes.
Smith did not report for work on May 18, 1992 and Respondents
submit that it is undisputed that he did not speak to Littenberg on
that date. However, Smith unilaterally telephoned the pharmacy and
stopped the shipment of radioactive isotopes. As a result, no
scans were performed.
Smith also did not report for work on Tuesday, May 19, 1992,
and again Smith called the pharmacy to prevent any isotopes from
being shipped to HMG, and HMG was precluded from conducting any
scans that day. Smith testified that he spoke to Littenberg late
in the afternoon on Tuesday, May 19, 1992, at which time Littenberg
informed him that the scans would resume the next day. Littenberg
has denied this testimony.
Littenberg testified that he did not speak to Smith until May
20, Wednesday, after Littenberg had resumed performing scans with
the assistance of Tajima and Terry Ichinose, whom Littenberg asked
to come to HMG and help Tajima perform the "flood", a safety test
used to make sure that the camera is imaging properly.
Respondents further point out that, significantly, Smith's May
21, 1992 letter, which he claims was written on May 20, 1992, does
not refer to the alleged conversation between him and Littenberg
and that he would have had his letter delivered on May 20, 1992, if
indeed he knew on May 19, 1992 that scans were going to be
performed on May 20, 1992.
[PAGE 8]
On May 20, 1992 and thereafter HMG resumed taking scans using
the services of Littenberg and Tajima. Respondents point out that
the NRC has conducted a full investigation of Smith's complaints
and found no violations of its regulations or applicable statutes
in the conduct of HMG, Littenberg and Tajima on May 20, 1992 and
thereafter.
In early June 1992, HMG hired Sandra Monzingo on a full time
basis to be Smith's replacement. Monzingo was administratively
supervised by the Director of Nursing. She was clinically
supervised by Littenberg because under NRC regulations there are
certain tasks that Littenberg, as the license holder, cannot
delegate to other persons. In addition, Monzingo has been required
to perform additional duties from time to time because the volume
of scans performed in the nuclear medicine department has dropped
as other diagnostic tests such as CAT scans and MRIs have become
more widely used.
Respondents submit that this complaint should be denied for
the further reason that, on February 18, 1994, Respondents' counsel
delivered to Smith's counsel an unconditional offer of
reinstatement offering Smith his former position as a nuclear
medical technician, effective March 7, 1994. In that letter,
Respondents offered to reinstate Smith, without prejudice to these
proceedings or to any other proceedings, at his former rate of pay
with all benefits. The letter did inform Smith that he would be
supervised to some extent by the Director of Nursing "who now
supervised nuclear medicine technicians." Smith was also informed
that his schedule would be changed from Monday through Friday to
Monday through Saturday with half days on Thursday and Saturday
mornings. In the letter, HMG's counsel invited Smith's counsel to
advise his if there were any questions.
At the time Smith received HMG's offer, he knew certain
supervisory tasks were non-delegable and would still be performed
by Littenberg. In addition, Smith testified that the Director of
Nursing could administratively supervise him, e.g., keep
track of his vacation, and other administerial tasks without
implicating any safety concerns. Smith testified at the hearing
that he really did not object to working Saturday mornings, and
that this aspect would have been negotiable.
On March 3, 1994, Smith's counsel advised HMG's counsel that
Smith had rejected the offer of reinstatement. No reasons were
given.
The parties stipulated that Smith, in the period between
[PAGE 9]
February 18, 1994 and March 3, 1994, could have ascertained,
through HMG's counsel, as to the extent of the supervision by the
Director of Nursing and could have clarified any other questions he
had about HMG's offer. Smith testified that he only had two
objections: any supervision by the Director of Nursing and working
half days on Saturdays.
Respondents submit that the changes in Smith's working
conditions set forth in HMG's unconditional offer of reinstatement
did not substantially alter Smith's terms and conditions of
employment and that, viewed objectively, Smith's reasons for
rejecting HMG's offer were personal. HMG's offer constituted a
bona fide offer of reinstatement to Smith's former position
or to a comparable position since his former position had slightly
changed and now involved administrative supervision by the Director
of Nursing. The administrative supervision by the Director of
Nursing would not have implicated any safety concerns. A
reasonable person would have accepted HMG's February 18, 1994
reinstatement offer.
Smith knew, or should have known, that if he rejected HMG's
offer of reinstatement for personal reasons, that he was waiving
his claim to reinstatement under the ERA. HMG's letter referred to
the United States Supreme Court decision in Ford Motor Company
v. EEOC, 458 U.S. 219 (1982). Smith was on notice that HMG was
attempting to mitigate its damages. At the time, HMG made its
offer, it did not know that Smith would not be seeking backpay for
the period after August 1, 1993.
Respondents point out that at the hearing, Smith was lucid and
articulate, and able to respond to questions. Smith did not
exhibit any signs of emotional distress or residual strain. Smith
testified that he has been seeking work albeit through informal
means.
SCOPE OF HEARING
The Secretary, on pages 8 and 9 of his Decision And Remand
Order, concludes as follows:
"Although the District Director found in this case
that Respondent violated the ERA, he did not order
Respondent to reinstate Complainant to his former
position, as the employee protection provision provides.
Regulations implementing the ERA should be read to give
full redress for a violation of the employee protection
provision. Under such a reading, a Complainant who
[PAGE 10]
prevails but neither receives the benefits of, nor waives,
reinstatement is entitled to a hearing to establish his right
to reinstatement.
"Based on a fair reading of the regulation in
congruence with the statutory language and intent, I
grant Complainant's request for a de novo hearing.
Accordingly, I remand this complaint to the ALJ for a
hearing limited to the issue of the remedies to which
Complainant is entitled under the ERA.[2] I note that
under the statute and upon request, Complainant is
entitled to "all costs and expenses (including attorneys'
and expert witness fees) reasonably incurred . . . in
connection with, the bringing of the complaint . . . ,"
and may be entitled to compensatory damages. 42 U.S.C.
§ 5851(b)(2)(B)."
On the basis of the totality of this closed record and having
observed the demeanor and having heard the testimony of the
witnesses, including a credible Complainant, I make the following:
FINDINGS OF FACT
The employee protection provision of the Act provides that:
(a) Discrimination against employee. (1) No
employer may discharge any employee or otherwise
discriminate against any employee with respect to his
compensation, terms, conditions, or privileges of
employment because the employee (or person acting
pursuant to a request of the employee)
(A) notified his employer of an alleged
violation of the Act . . .;
(B) refused to engage in any practice made
unlawful by this Act . . . if the employee has
identified the alleged illegality to the
employer;
(C) testified before Congress or at any
Federal or State proceeding regarding any
provision (or proposed provision) of this Act
. . .;
(D) commenced, caused to be commenced, or is
about to commence or cause to be commenced a
proceeding under this Act . . . or a
proceeding for the administration or
enforcement of any requirement imposed under
[PAGE 11]
this Act . . .;
(E) testified or is about to testify in any
such proceeding or;
(F) assisted or participated or is about to
assist or participate in any manner in such a
proceeding or in any other manner in such a
proceeding or in any other action to carry out
the purposes of this Act . . . .
42 U.S.C.S. § 5851 (Supp. May, 1993).
The Complainant has the burden of establishing a prima
facie case of discrimination under the ERA. The complainant
must show, by a preponderance of the evidence, that he engaged in
protected activity, that he was subjected to adverse action and
that the Respondent was aware of the protected activity when it
took the adverse action against the complainant. In addition, the
Complainant must produce evidence sufficient to at least raise an
inference that the protected activity was the likely motive for the
adverse action. See Dartey v. Zack Co. of Chicago, Case No.
82-ERA-2, Sec. Dec., Apr. 25, 1983, slip op. at 7-9. If the
Complainant satisfies his burden of presenting a prima facie
case, the burden of production shifts to the Respondent to produce
clear and convincing evidence that the adverse action was taken for
legitimate, non-discriminatory reasons. See Dartey at 8.
Courts and the Secretary of Labor have broadly construed the
range of employee conduct which is protected by the employee
protection provisions contained in environmental and nuclear acts.
See S. KOHN, THE WHISTLEBLOWER LITIGATION HANDBOOK 35-47
(1990). Examples of the types of employee conduct which the
Secretary of Labor has held to be protected include: making
internal complaints to management,[3] reporting alleged violations
to governmental authorities such as the Nuclear Regulatory
Commission ("NRC") and the Environmental Protection Agency,
threatening or stating an intention to report alleged violations to
such governmental authorities, and contacting the media, trade
unions, and citizen intervenor groups about alleged violations.
Id.
1. Richard G. Smith ("Smith" or "Complainant") was during his
employment with Honolulu Medical Group ("HMG" or "Respondent") an
employee covered by the provisions of the Energy Reorganization Act
("ERA"), 42 U.S.C. §5851.
2. HMG is an employer under the ERA, 42 U.S.C. §5851,
engaged in the business of operating a medical facility which uses
radioactive isotopes licensed and regulated by the Nuclear
[PAGE 12]
Regulatory Commission ("NRC").
3. Respondent Richard L. Littenberg, M.D. ("Littenberg") is
the holder of the license from the NRC.
4. Complainant, a trained and experienced radionuclide
medical technologist, became certified and registered in Nuclear
Medicine Technology by the American Registry of Radiological
Technologists in May of 1976. In June of 1976, Complainant
accepted a job with Kuakini Hospital in Honolulu, Hawaii, as a
radionuclide medical technologist and later served as the
Hospital's Acting Chief of the Nuclear Medicine Department. (TR at
53, 55)
5. Thereafter, Smith was hired as a nuclear medicine
technologist by Queens Medical Center ("Queens") where he met and
became friends with Dr. Richard L. Littenberg ("Littenberg" or
"Respondent"). In 1979, Littenberg hired Smith to work at
"Littenberg Mobile Medical," a portable nuclear medical company
which serviced major medical hospital intensive care patients in
Honolulu. Smith worked for Littenberg's company for two years
before it was closed when the portable business was no longer
profitable. (TR at 57)
6. In 1981, Smith worked in a private nuclear medicine
technology clinic and, the next year, returned to Queens where he
served as a Nuclear Medicine Technologist and started doing
"monoclonal antibody research." (TR at 59)
7. On July 14, 1986, Littenberg hired Smith to work at
Honolulu Medical Group ("HMG") as HMG's Chief of nuclear Medical
technology and only radionuclide technologist. Smith's primary
jobs at HMG were doing diagnostic imaging, radiation safety,
coordinating radio isotopes, calibrating equipment, operating the
dose calibrater, well counter and gamma camera, maintaining HMG's
compliance with Nuclear Regulatory Commission ("NRC") guidelines
and handling patient scheduling. The dose calibrater, well counter
and gamma camera are complex equipment which use and/or register
radio-isotopes to perform a variety of functions. The dose
calibrater uses cesium 137 to check the range of isotopes used on
patients. The well counter is used for safety reasons to determine
if a radioactive spill has occurred. The gamma camera images
radio-isotopes injected in a patient to diagnose disease, such as
cancers. (TR 61-63, 70-72)
8. Smith was hired with the understanding he would not be
supervised by anyone at HMG other than Littenberg. On January 26,
1987, Smith was given his first evaluation by HMG's Director of
[PAGE 13]
Nursing. Smith protested on the evaluation form that this
evaluation was contrary to his agreement with Littenberg:
I was informed and promised I would be under
the direct supervision of Dr. Littenberg ONLY!
The Director of Nursing is NOT TO EVALUATE ME.
If it occurs again, this will be a direct
violation of employment agreement.
(Exhibit 1 at E-168) Smith and Littenberg had entered into an
agreement before Smith began working at HMG in 1986 that he would
not be supervised by the Director of Nursing. Thereafter, Smith
was only evaluated by Littenberg. (TR 100, 101, 349)
9. In September 1991, David Tajima ("Tajima") applied for a
clerk position. Littenberg and Smith had previously discussed
Smith's need for clerical help. Littenberg hired Tajima to help
Smith with his paperwork. Tajima started doing clerical work for
Smith. Smith taught Tajima how to operate a geiger counter, a
device which was easy to operate. Littenberg wanted Smith to teach
Tajima his job. However, Smith refused to teach Tajima his job,
including the calibration of equipment, because of his concerns for
patient safety, because Tajima was not licensed and because Smith
had spent his own time and funds to become trained in the nuclear
medical technology field. (TR at 66, 67 and 68) Littenberg never
gave Smith a direct order to teach Tajima his job and Smith did not
teach Tajima how to calibrate nuclear medicine equipment. (TR 64-
69)
10. Although a job description was developed for Tajima
(Exhibit 26), Smith did not participate in its development. (TR at
69-70). The first time Smith saw Exhibit 26 was in "June of 1992
at the Federal Building at the Department of Labor" after he was
fired from HMG. (TR at 69 and 98). Yet, Littenberg misinformed
the NRC that Smith had participated in developing the job
description. (Exhibit 3 at E-159).
11. There was no formal nuclear medical training program at
HMG. Such a program would have entailed requirements similar to
the ones implemented at Queens, a program which included: 1) a
correspondence course with a mainland university; 2) several years
work on the job; and 3) passing the national nuclear registry test.
(See Testimony of Terry Ichinose, TR at 43-6) Queens was
the first hospital in Hawaii to start such a training program and
HMG did not have such a program. (TR at 47)
12. Tajima was not qualified for his own job description as
[PAGE 14]
he had not completed a medical assistant program (TR at 303) or one
year of direct patient care (TR at 303-04), as required by the job
description. He also had not completed any formal training or any
of the other requirements established at Queens. (TR at 304)
13. Smith's personnel record (Exhibit 1) demonstrates, and
Smith's testimony confirms, that during his employment at HMG Smith
took very little time off for vacations or sick leave. (TR at 73-4)
His personnel file shows the following:
1986: He took no sick days. Exhibit 1 at E-166.
1987: His attendance record was "always regular."
Id. at E-170.
1988: He took two sick days and no vacation time.
Id. at E-19. His July 8, 1988
evaluation noted his attendance was "always
regular." Id. at E-174.
1989: He took no sick days, three days leave with-
out pay and 14 days vacation. Id. at
E-24.
1990: He took three sick days, five days vacation
and 13 days at a nuclear medical conference.
1991: He took four sick days and four days vacation.
Id. at E-70.
1992: He took 1/2 day vacation and three days
workers compensation. Id. at E-73.
In his five years with HMG, Smith took only 9 sick days, 23.5
vacation days, three days workers' compensation and 13 days to
attend a professional meeting. He was entitled to up to 20
vacation days a year. Smith was unable to take all his vacation
time because of "the increasing shortage of nuclear medicine
technologist and increasing work load." (Exhibit 1 at E-65)
14. Accordingly, HMG regularly paid Smith for his unused
vacation time. For example, on October 21, 1988, Littenberg
authorized Smith to be paid for 10 accrued vacation days.
(Id. at E-20) A March 7, 1991 memo in Smith's personnel
file also confirmed this arrangement. (Id. at E-63) His
personnel file reveals he was paid for 80 hours vacation in
October, 1988, 72 hours in December, 1988, 120 hours in 1989, 56
hours in April, 1990, and 80 hours in March, 1992. (Id. at
E-35-6) In May, 1992,
[PAGE 15]
just prior to his termination, Littenberg audited Smith's vacation
time and determined that he had accrued 160 hours (20 days)
vacation (Id. at E-34)
15. On Friday, May 15, 1992, Smith suffered a work related
injury while lifting a heavy patient. He felt a "pulling
sensation," but did not think much of it at that time and he
continued to work. However, later, the back pain became more
"intense." (TR at 75)
16. On Monday, May 18, 1992, at 8:05 a.m., Smith called April
Ferrer ("Ferrer"), Littenberg's nurse, and told her that he was
unable to work because he had injured his back lifting a patient.
(TR at 75-6, 204) According to Ferrer's recorded statement,
"Whenever he [Smith] called in sick, he called me up and I let the
doctor know." (Exhibit 1 at E-141) Smith testified that that was
the normal procedure. (TR at 76) He had never been instructed or
ordered to call Littenberg when he was sick. (TR at 76 and 94-5)
Smith also "usually" called Tajima when he was not going to be in
and, during the week of May 18, Smith called him every day. (TR at
323) Tajima told Littenberg that Smith was sick. (TR at 324)
Ferrer's recorded statement to the insurance carrier confirmed she
told Littenberg that Smith was out sick on May 18. (Id. at
E-141) She also testified:
Q. ... I'm going to ask if you recall
that there was an occasion which Rick Smith
called you up to inform you that he -- he had
had an injury.
A. Yes.
Q. Okay. What did he say to you?
A. He called me and said he will not be
in to work today 'cause yesterday he injured
his back.
Q. Okay. And what did you do?
A. I took the message.
Q. Yeah.
A. And I related to Dr. Littenberg when
he called in.
[PAGE 16]
(TR at 204) Smith's call was made the first day he was out. (TR
at 205) Littenberg called in a note to the personnel department
that "Rick Smith [was] out sick today -- to make a note."
(Id. at E-96) Littenberg admitted he called in the note:
Q. You told the people upstairs on the
18th that Rick Smith was out sick, was that
what you were saying?
A. Yeah.
(TR at 242)
Q. Well, you could have just said,
Rick's -- Rick's not here. Why did you have
to say he's out sick?
A. I don't know why.
(TR at 242-43) Littenberg's recorded statement also admits Ferrer
told him on May 18 that Smith had called in sick:
Q. ... May 18th, yes. He spoke to
April on the telephone, that's what he
alleged.
A. He called in sick, "cause he
obviously wasn't here ... I asked where was
Rick and I was told he had called in, and he
knows the hours that I'm here, and he get
called in well, prior to my arriving and
claimed that he was out sick ...
(Exhibit 11 at #-240) Dr. Littenberg has denied that he was told
that Smith was sick that day.
17. Pursuant to standing operating procedure, Smith informed
the Pacific Radio Pharmacy not to deliver the radio-isotopes to HMG
that day and he also made an appointment to see Dr. Peter Diamond,
an HMG orthopaedic specialist, on May 19, 1992. (TR at 76)
18. On Tuesday, May 19, 1992, Smith called Ferrer again to
tell her that he would remain out of the office. (TR at 77)
Complainant's personnel file contains a note that "he's filing
(for) W.C." (worker's compensation). (Exhibit 1 at E-96) Smith
also told Tajima the same thing. Littenberg testified he learned
that morning from Ferrer that Smith was still out sick. (TR at
216) Smith saw Dr. Diamond who examined him and diagnosed cervical
[PAGE 17]
spasms. Dr. Diamond told Smith to return Thursday, May 21, 1992.
Smith later called Littenberg to inform him what Dr. Diamond had
told him. Littenberg was "furious" because Smith was not there and
because Smith had stopped the radio-isotopes from being delivered
to HMG. Smith told Littenberg there was no reason for the radio-
isotopes to be delivered because there was no qualified technician
to handle them. Littenberg said that he would use Tajima and do
what he pleased. Smith felt that was a mistake and not the proper
procedure because Tajima did not know how to calibrate the
equipment and perform the other necessary tasks. The conversation
ended with Littenberg telling Smith not to worry about being ill
and to come in on Thursday. (TR 77-79)
19. On Wednesday, May 20, 1992, Smith called HMG at 8:05 a.m.
and spoke to Tajima who advised him (Smith) that Littenberg was
having him do radionuclide scanning on patients. Tajima advised
Complainant that the radio-isotopes had been delivered and Terry
Ichinose, a radionuclide technician at Queens, would shortly be
there to calibrate the equipment. Smith thought that was a mistake
because of his concerns for safety of the patients. Smith wrote a
letter to Littenberg, with copies to the HMG radiation safety
committee, complaining that Respondents were permitting unqualified
persons to perform Radionuclide Scanning examinations of patients.
However, the letter, Exhibit 8, was not mailed until the next day.
(TR 80-81)
20. On Thursday, May 21, 1992, at 8:05 a.m., Smith called
Ferrer or Tajima to report he was still out due to illness. He saw
Dr. Diamond that morning and the doctor advised him to remain out
until Monday. Smith mailed Exhibit 8. (TR 81)
21. On Friday, May 22, 1992, Smith had a message to call
Littenberg. Smith called Littenberg who informed him he was
terminated and to pick up his letter of termination and pay that
day. Littenberg said he was terminated because of the letter he
had written. (Exhibit 8) Littenberg was "upset" because Smith had
"embarrassed him." Littenberg testified he "went ballistic" after
receiving the letter. (TR at 218) Smith asked if they could
discuss the matter, to which Littenberg replied, "No." (TR at 84)
Smith picked up his letter of termination. (Exhibit 10) This
letter clearly stated Smith was terminated because of Exhibit 8.
On August 5, 1994, Littenberg caused his attorneys to file a
Petition for Review of Agency Action in the United States District
Court for the District of Hawaii, in Littenberg v. Reich,
Civ. No. 93-00650 HMF. (Exhibit 21) The Petition states Smith was
terminated because of Exhibit 8:
[PAGE 18]
On May 22, 1992, Dr. Littenberg terminated Smith on
grounds that his correspondence was defamatory and
flagrantly insubordinate.
(Exhibit 21 at E-349)
22. Within a month of Smith's termination, Littenberg knew
Smith had filed a worker's compensation claim for his back injury.
(TR at 219-20)
23. Smith's termination devastated him and he felt "betrayed"
by Littenberg and HMG, especially since he had been a loyal and
dedicated employee for a number of years. He became "withdrawn"
and had "difficulty sleeping." (TR at 85) He was "devastated by
all of this." He also became depressed and required evaluation and
counselling by Dr. Robert Marvit. (Exhibits 17 and 18) Dr. Marvit
reported that Complainant was "depressed, obsessing, ruminating,
and has post traumatic problems" (Exhibit 17 at E-307) and
diagnosed him as suffering emotionally and psychologically from his
termination:
This is a young man who feels as if he was beaten
up by a powerful authority who lied, cheated and
misrepresented things to be vindictive to him as a
whistle blower. His strong concerns about
adherence to the rules and the protection of
patients, have placed him in a precarious position
and created somewhat of a reactive depression,
anxiety syndrome. He currently is not having
symptoms out of proportion with the reality context
although, clearly, is clinically suffering from
this condition.
(Exhibit 18 at E-326) None of his symptoms existed prior to his
termination. (TR at 193-94) Dr. Marvit has concluded that Smith
was in need of additional therapy over 18 to 24 months for his
depression. (Exhibit 18 at E-326) Smith was billed ,250 for Dr.
Marvit's services. (Exhibits 19 and 24)
24. The following consist of incorrect or exaggerated written
or oral statements of Littenberg in HMG's and the NRC's files, to
which Smith is entitled to abatement remedies:
a. Littenberg's letter of July 30, 1992, to the
Nuclear Regulatory Commission (NRC) states that Smith's "[m]ultiple
vacations, trips and both excused and unexcused absences had
created significant interruptions in the Nuclear Medicine
[PAGE 19]
laboratory function." (Exhibit 3 at E-159) The record is clear
that Smith did not regularly take vacations (for which he was paid
by HMG) and was rarely out on sick leave or for any other reason.
On cross-examination, Littenberg claimed Smith took vacations which
were not recorded in the files. However, on May 15, 1992, just six
days before Smith's termination, Littenberg informed Smith in
writing that the audit of his vacation time proved he had 160 hours
accrued vacation. (Exhibit 1 at E-34) In his testimony,
Littenberg could not say how many days vacation Smith took which
were not reflected in his personnel file:
Q. And you can't tell us how many days
vacation Rick actually took that are not
reflected in these records?
A. You're right.
(TR at 240) He also could not say whether Smith took more vacation
time than he was permitted under HMG rules:
Q. Is it -- is it your belief, Dr.
Littenberg, that Rick Smith took more vacation
than he was entitled to take under the Medical
Group policy and regulations?
A. I don't know the answer to that
question.
(TR at 245)
Q. ... what you're saying is he may
have taken more vacation than is reflected in
the records, but less than he was entitled to
take under Medical group policy. You just
don't know?
A. Yes, Sir.
Q. Are you saying that Medical group
improperly paid him for unused vacation time?
A. That's not what I'm saying.
(TR at 246)
This Administrative Law Judge concludes that the record does
not support Dr. Littenberg's testimony that Smith took multiple
[PAGE 20]
vacations and unexcused time off and, therefore, could not have
caused significant disruptions in the nuclear medicine department.
In fact, I conclude that Complainant was a loyal and dedicated
employee, throughout his employment with Respondents.
b. The letter further states, "[T]emporary
technologists on an emergency basis were often required."
Id.
Because of Smith's work history and lack of absences, temporary
technologists on an emergency basis could not have been "often"
required.
c. The letter further states, "Mr. Tajima's job
description was developed conjointly by both Mr. Smith and myself."
Id. Smith did not participate in the development of the job
description since he did not see the description until the NRC sent
him materials sometime in the fall of 1992 after he was terminated.
d. The letter further states, "The records clearly
state that David was performing the wipe test and instrument
calibration with the exception of the gamma camera prior to the
departure of Mr. Smith for a matter of many months." Id. at
E-160. Complainant submits the statement is false because Tajima
was not calibrating equipment since he was not qualified to
perform and was incapable of performing that function.
e. The letter further states, "... Mr. Smith's
'alleged injury' led to his 'unexplained disappearance'...." Id.
Smith was on workers' compensation from May 18, 1992, and had
called HMG to inform them of his injury. Littenberg knew as of May
18 that Smith was out of work on disability and was receiving
compensation benefits and did not have an "unexplained
disappearance." Moreover, by the date of his letter, Littenberg
had the completed workers' compensation report.
f. The letter further states, "On the dates noted,
David Tajima continued doing his preassigned duties and continued
imaging patients which he had been doing under Mr. Smith's tutelage
for the prior eight months." Id. Tajima was not qualified
or capable of performing the duties Littenberg states he was
performing.
g. The letter further states, "This was the only
job function that David Tajima had not done previously on his own."
Id. This is not true.
h. Littenberg's letter of October 7, 1992, to the
NRC states that Smith "actually abandoned his position on May 18
[PAGE 21]
and 19, 1992." Smith did not abandon his job and Littenberg knew
it. (Exhibit 3 at E-156) Indeed, as of that time, Littenberg knew
he had filed a workers' compensation claim for his injury. (TR at
229) Littenberg could not explain why he did not inform the NRC
that Smith had a work injury:
Q. When? When did you inform them in
writing that Rick had incurred a work comp.
injury?
A. I don't know.
*****
Q. Well, I'll ask the question again.
A. No, I did not write to them.
(TR at 230-31 and 232)
i. The letter further states, "[a]s I was preparing
documents to Fed-Ex to Mr. Smith notifying him of his termination
for abandonment of his position and after hiring a new certified
nuclear medicine technologist, I received Mr. Smith's letter, dated
May 20, 1992." Id. Because Smith did not abandon his job,
Littenberg could not have been preparing a letter to that effect,
I find and conclude.
k. The letter further states, "... Mr. Smith, who
participated in the formulation of the Nuclear Medicine Assistant
job description ..." Id. Smith did not participate in the
formation of the job description and, in fact, did not see the
document until much later.
l. Littenberg's May 18 and 19, 1992 notes to the
file are incorrect. (Exhibit 3 at E-185) Smith called in both
days and Littenberg knew Smith was ill with a workers' compensation
claim.
m. Littenberg's May 21, 1992, notes state, "David
is only doing the same functions he has done in the past. Any lack
of training is directly attributable to the dereliction of duty on
the part of Mr. Smith. David is still calibrating equipment
exactly as he has been doing in the past." (Exhibit 3 at E-186)
Tajima had not been calibrating equipment. Based on Tajima's
testimony, I find and conclude that he had virtually no
understanding of the intricacies of calibration and the proper use
of the dose calibrator, well counter and gamma camera. Further,
[PAGE 22]
Scott Dube, Radiological Safety Officer at Queen's Medical Center,
admitted that he told Smith that Tajima had no business calibrating
equipment and that he was over his head and doing things he should
not have done at HMG:
I might have said that if Rick had first told
me things that -- that David were doing. And
those things included injecting patients and
stuff, then my reaction would be yes, he is
over his head in response to what Rick may
have described his function would be.
(TR at 121)
n. Littenberg's May 18, 1992, notes state, "Rick
did not show up for work. He did not call me, his supervisor as
clearly outlined in the Personnel policy." (Exhibit 3 at E-185)
Smith called HMG that morning and advised Ms. Ferrer that he had
suffered a work-related injury and would not be in to work.
Moreover, Ferrer's recorded statement confirms that Smith called
her on May 18th and that she told Littenberg Smith was out sick.
(Exhibit 1 at E-141) A phone message in Smith's personnel file
demonstrates that Littenberg had called the personnel department on
May 18 to inform them that Smith was "out sick today" and to "make
a note" of it. (Exhibit 1 at E-96) Littenberg's recorded
statement further demonstrates he knew Smith had called Ferrer on
May 18 to say he was out sick. (Exhibit 11 at E-240)
o. Littenberg's May 19, 1992, notes to file state
that he was considering terminating Smith for "abandonment of
position." (Exhibit 3 at E-185) However, based on this closed
record, I further find and conclude that Littenberg knew Smith had
not abandoned his position, but rather knew he was out because of
a work-related injury and was unable to work.
p. Littenberg's recorded statement to Industrial
Indemnity states Smith's "job evaluations ... indicated in
repetitive fashion, that he was antagonistic towards the rest of
the staff, the rest of the staff was afraid to call him ..."
(Exhibit 11 at E-241) In fact, Smith's only evaluations in
evidence at Exhibit 3 at E-165-76) indicated that he "works well
with others" (id. at E-165), "generally works well with
staff and physicians" (id. at E-169) and "works well with
others," (id. at E-173)
q. Littenberg's recorded statement further states,
"Rick was out sick enough that ... the laboratory was placed in
[PAGE 23]
jeopardy ..." Id. In fact, Littenberg knew this was
untrue.
r. Littenberg's recorded statement further states,
"This time he just stopped showing up for work, he didn't contact
me ..." (Id. at E-242) In fact, on May 18, 1992, Smith
called Littenberg, through Ferrer, to inform them that he had
suffered a work injury and was unable to work.
s. Sometime after Smith's termination, Littenberg
repeated to Ferrer some hearsay that Smith was using illegal drugs,
an allegation which was untrue and is not corroborated in any way.
(TR at 207-208)
24. On February 18, 1994, Smith was offered reinstatement by
HMG to his prior position effective March 7, 1994:
Mr. Smith would perform essentially the same
duties; however, there is no longer an assistant
and to the extent that he has the time available,
he would also be called upon to perform other
related tasks as directed by the Director of
Nursing who now supervises the nuclear medical
technician. ... Mr. Smith would work a 40 hour
schedule consisting of four week days, a half day
Thursday mornings, and Saturday mornings from 8:00
a.m. to 12:00 p.m.
(Exhibit R-4)[4] Smith declined the offer because, as Littenberg
admitted in his testimony, it was not an unconditional offer of
reinstatement to the same position with the same terms and
conditions he had before his termination:
Q. With respect to your offer of rein-
statement, you do agree that the offer
contains terms and conditions that are
different from the terms and conditions of
Rick's employment in May of 1992?
A. [Littenberg] Yes.
(TR at 350) The offered job was different from his prior job for
the following reasons: first, Smith had never been supervised by
the HMG Director of Nursing, a person who was not licensed or
skilled in the field of nuclear medicine. (TR at 100, 138 and 141)
Complainant testified that if he worked "under the supervision of
the Director of Nursing," it would be "a safety issue because she
had no training in nuclear medicine and she would be responsible
[PAGE 24]
for nuclear medicine and evaluating my work in nuclear medicine."
(Id.) Smith had never worked for the Director of Nursing
and previously made clear to Littenberg he would not work for the
Director of Nursing. (Exhibit 3 at E-168) Smith also was never
supervised by the Director of Nursing in non-safety, non-nuclear
and non-radiological areas. (TR at 190) Although Littenberg
claimed Smith's nuclear medicine work would continue to be
supervised by Littenberg, that stipulation is not contained in the
offer of reinstatement:
Q. Alright. And when you got our
reinstatement letter, didn't you assume that
Dr. Littenberg would still clinically super-
vise you -- the formulas functions that have
to be done by doctor of medicine?
A. That's not what you said in your
letter.
(TR at 142) Second, he was never given "other related tasks" by
the director of nursing. Third, he was never required to work on
Saturdays and, historically, Smith worked Mondays through Fridays,
with the weekends off. (TR at 103-04) "[T]hat was one of the
things that was attractive about" working at HMG. (Id.)
Since his termination, he has had to work odd hours because that
was the only work available to him and he needed to work. He
preferred the working conditions at HMG to the conditions at his
jobs since being terminated. (TR at 192-193)
25. At the time of his termination, Smith was earning at HMG
$19.55/hour, $782/week, $3,388/month, or $40,664/year, not
including fringe benefits. (TR at 105-06) If he had not been
terminated, Smith would have earned from May 22, 1992 to August 1,
1993, approximately $49,004. While on Workers' Compensation for 62
weeks, from May 21, 1992 to July 26, 1993, Smith received
$26,969.15, thus, Smith is entitled to lost wages of $49,004, less
the workers' compensation he received. (Id.)
Based on the foregoing findings of fact, I find and conclude
that Complainant has satisfied his burden of presenting a prima
facie case. The overwhelming weight of the evidence proves
that Respondents' sole motive for terminating Complainant was the
fact that he had engaged in protected activity. The totality of
this closed record leads to the conclusion that Complainant
reported these violations of the ERA to the Respondents and that
these actions of the Complainant were the "motivating factor" in
Respondents' decision to terminate him. See Consolidated Edison
[PAGE 25]
Co. v. Donovan, 673 F.2d 61, 62 (2d Cir. 1982).
ELEMENTS OF COMPLAINANT'S CASE
A. Engagement in Protected Activity
As already reported above, the District Director initially
concluded that Respondents' termination of the Complainant violated
the provisions of the ERA. That conclusion was not appealed by
Respondents and the Secretary rejecting Judge Mahony's recommended
decision, has concluded that Respondents waived their right to a
hearing on the issue of liability when they "declined to seek a
hearing within five days of receipt of the District Director's
findings and order." Thus, Complainant has satisfied this aspect
of his prima facie claim.
B. Respondents' Knowledge That Complainant WAS Engaged in
Protected Activity
Likewise, this issue was resolved in complainant's favor by
the District Director and reconsideration of this issue herein is
foreclosed by the Secretary's mandate to the Office of
Administrative Law Judges.
C. Adverse Actions, Including Discharge, Following Protected
Activity
Complainant was treated differently than other employees
following his notification of violations or concerned activity
under the Act.
"If an employer treats an employee differently after
learning that the employee has engaged in protected
activity, that difference in treatment is sufficient to
establish a causal connection between the protected
activity and the adverse personnel action." Schlie
and Grossman, supra, citing Smins v. Mme. Paulette
Dry Cleaners, 580 F.Supp. 593, [S.D.N.Y. 1984], see
also Capaci v. Katz & Besthoff, Inc., 525 F.Supp.
317 [E.D.La.1981] Aff'd. in part and reversed in part,
711 F.2d 647 [5th Cir. 1983], and other cases cited
therein."
This issue was resolved in Complainant's favor by the District
Director and reconsideration of this issue herein is foreclosed by
the Secretary's mandate to the Office of Administrative Law Judges.
D. Temporal Relationship between the Protected Activity and the
[PAGE 26]
Termination
It is well-settled that temporal proximity is sufficient as a
matter of law to establish the final required element of a prima
facie case - that of causation of retaliatory discharge.
Keys v. Lutheran Family and Children's Services of Missouri,
668 F.2d 356, 358 (8th Cir. 1980); cert. denied, 450 U.S.
979, 101 S.Ct 1513, 67 L.Ed 2nd 814 (1981); Davis v. State
University of New York, 802 F.2d 638, 642 (2d Cir. 1986);
Mitchell v. Baldrich,759 F.2d 80, 86 (D.C. Cir. 1985);
Dominic v. Consolidated Edison Co. of New York, 822 F.2d
1249 (2d Cir. 1987) (considering retaliatory action claim for
firing that occurred three months after filing complaint;
Burrows v. Chemed Corp., 567 F. Supp. 978, 986 (E.D. Mo.
1983) (holding inference of retaliatory motive justified, where
transfer followed protected activity; Kellin v. ACF
Industries, 671 F.2d 279 (8th Cir. 1982) (holding lower court's
finding that prima facie case for retaliatory action was
established, where EEOC charge was filed in late 1971 and
disciplinary measures occurred throughout 1972).
The close proximity of time of the discharge to the protected
activity will justify the inference of a retaliatory motive in the
employer. County v. Dole, supra [8th Cir. 1989]. The above
cases include temporal spacing between the protected activity and
the retaliatory discharge of up to five months. Thermidor,
supra.
In view of the foregoing, I find and conclude that the
temporal relationship exists herein as the decision to terminate
Complainant was made immediately after receipt of the letter in
question. (CX 8)
E. DISCRIMINATORY DISCHARGE
I specifically reject the Respondents' position that
Complainant was not terminated for engaging in protected activity
(CX 10) but that he was unable to work because of his work-related
injury.
I also reject the thesis that my decision herein, in effect,
"second-guesses" the Respondents' business decisions. I do no such
thing because my task is to determine whether the Respondents'
actions were bona fide or were pre-textual. As I have
already
[PAGE 27]
concluded, my review of the evidence leads to the logical inference
that Complainant was terminated because of his protected activity
and, thus, Respondents' reasons therefor are, in my judgment, pre-
textual.
F. REMEDIES/DAMAGES
While Complainant has found gainful employment through his own
efforts, he does seek reinstatement to his former position with
Respondents. However, there is a serious question as to whether he
can work harmoniously with Respondents. He specifically seeks an
award of the lost back pay, any fringe benefits of which he has
been deprived and compensatory damages as set forth above.
Shore v. Federal Express Co., 777 F.2d 1155 (6th Cir. 1985);
Davis v. Combustion Engineering Co., 742 F.2d 916, 922-23
(6th Cir. 1985).
It is now well-settled that the ERA requires "affirmative
action to abate the violation." 42 USC §5851(b)(2)(B).
Under the statute and upon request, Complainant is entitled to
an award of "costs and expenses (including attorney's fees and
expert witness fees) reasonably incurred ... including compensatory
damages." 42 USC §5851(b)(2)(B). Moreover, the
purpose of back pay is to make the employee whole, that is, to
restore the employee to the same position in which he or she
would have been but for the discriminatory discharge. Back pay
awards should, therefore, be based on the earnings the employee
would have received but for the discrimination. Blackburn v.
Metric Constructors, Inc., 86-ERA-4 (Sec'y Oct. 30, 1991).
Further, interim earnings in replacement employment should be
deducted from a back pay award. Id. In addition,
prejudgment interest on back pay wages is permitted in
whistleblower cases. Such interest is calculated in accordance
with 29 CFR §20.58(a), at the rate specified in the Internal
Revenue Code at 26 USC §6621. Id.
The award of back pay effectuates the remedial statutory
purpose of making whole the victims of discrimination, and
"unrealistic exactitude is not required" in calculating back pay
and "uncertainties in determining what an employee would have
earned but for the discrimination, should be resolved against the
discriminating (party)." EEOC v. Enterprise Ass'n Steamfitters
Local No. 6348, 542 F.2d 579, 587 (2d Cir. 1976),
cert. denied, 430 U.S. 911 (1977), quoting
Hairston v. McLean Trucking Co., 520 F.2d 226, 233 (4th Cir.
1975). Initially, the Complainant bears the burden of establishing
the amount of back pay that Respondents owe. Adams v. Coastal
Production Operation, Inc., 89-ERA-3 (Sec'y Aug. 5, 1992).
Once the Complainant establishes the gross amount of back pay due,
the burden shifts to the Respondents to prove facts
[PAGE 28]
which would mitigate that liability. Lederhaus v. Donald
Paschen & Midwest Inspection Service Ltd., 92-ERA-13 (Sec'y
Oct. 26, 1992), slip. op. at 9-10; Moody v. T.V.A., Dept of
Labor Decisions, Vol. 7, No. 3, p. 68 (1993).
Regulations implementing the ERA should be read to give full
redress for a violation of the employee protection provision
because the ERA has a "broad, remedial purpose of protecting
workers from retaliation based on their concerns for safety and
quality." Mackowiak v. University Nuclear Systems, Inc.,
735 F.2d 1159, 1163 (9th Cir. 1984).
As indicated above, the statutory authorization authorizes the
Court to award compensation including back pay; restoration of the
terms, conditions and privileges of the prior employment; and
compensatory damages to the Complainant.
The statute allows "abatement of discrimination, restoring an
employee to his job with all attendant benefits including back pay,
or compensatory damages, and an award of all reasonable expenses
incurred in pursuit of the action." Deford v. Secretary of
Labor, supra at 289. The use of compensatory damages in
Section 5851 is intended to include not only such things as
retirement benefits, but also medical expenses and other damages
incurred in connection with physical ailments suffered by the
employee resulting from the embarrassment and humiliation
accompanying the discriminatory act. 79 ALJ Fed. 631, Section 6,
citing Deford v. Secretary of Labor, supra, according to
Complainant's thesis.
It is now well-settled that Complainant has a duty to mitigate
damages by making a reasonable effort to Complainant find
comparable employment. See, e.g., Ford Motor Company v.
EEOC, 458 U.S. 291, 102 S.Ct. 3057 (1982).
Complainant also seeks an award of compensatory damages and
"The measure of compensatory damages is such sum as will compensate
the person injured for the loss sustained, with the least burden to
the wrongdoer consistent with the idea of fair compensation." 25
Corpus Juris Secundum, Section 71. Compensatory damages may
include general damages for mental anguish and for physical pain
and suffering, and can include injury to reputation as a
compensable psychic injury, which is a portion of the emotional
distress damages and may include mental anguish, emotional strain
and mental suffering. Nahmod, Civil Rights and Civil Liberties
Litigation, Section 4.03, "Compensatory Damages". The Seventh
Circuit has taken the approach, when awarding damages in wrongful
discharge cases, to look at the range of awards previously made.
[PAGE 29]
Fleming v. County of Kane, State of Illinois, 898
F.2d 553 (7th Cir. 1990).
Complainant's attorney also seeks approval of an attorney's
fee as such fees are specifically authorized by the Act. The
standards for determining what constitutes a reasonable attorney's
fee should be drawn from decisions under Title VII and 42 U.S.C.
Section 1988. Modjeska Employment Discrimination Law, Second
Edition, Section 519. See generally Bloom v. Stenson, 465 U.S.
886, 79 L.Ed.2d 891, 104 S.Ct. 1514 (1984). "The general rule is
that hours recently spent on successful claims and those
sufficiently related thereto will be multiplied by a reasonable
rate to produce the lodestar amount." Modjeski, supra, citing
Fite v. First Tennessee Production Credit Association, 861 F.2d
887 (6th Cir. 1988). Upward allowances have been allowed where
counsel had a contingency fee agreement and had worked in a small
firm. See Fite, supra; Wildman v. Lerner Storage Corp., 771
F.2d 605 (1st Cir. 1985). "The amount due counsel under contingent
fee agreement does not impose a ceiling on the amount of attorney's
fee the court may award." See Modjeska, supra, citing Herold v.
Hajoca Corp., 864 F.2d 317 (4th Cir. 1988).
It is well-settled that an aggrieved employee who proves a
violation of the Act may be entitled to reinstatement together with
a restoration of the terms, conditions and privileges of his
employment, including back pay. See 42 U.S.C. §
5851(b)(2)(B). The employee is not, however, entitled to any newly
created privileges of employment. Deford v. Secretary of Labor,
700 F.2d 281 (6th Cir. 1983). Also, Congress did not make
punitive damages available to prevailing employees. See English
v. General Electric Co., 683 F. Supp. 1006 (E.D.N.C. 1988).
As is true in discrimination cases generally, as well as the
common law of employment contracts, any award of back pay or other
damages must be reduced by interim earnings or amounts earnable
with reasonable diligence. See, e.g., 42 U.S.C. §
2000e-5(g); Nord v. United States Steel Corp., 758 F.2d 1462
(11th Cir. 1985) (interim earnings to be deducted from back pay
award because plaintiff is not entitled to be made more than
whole).
As noted above, Complainant became employed on August 1, 1993
and he does not seek any back pay after that date.
This Administrative Law Judge, in resolving Complainant's
entitlement to compensatory damages and the extent thereof, is
guided by certain well-settled principles in the area of
compensatory damages law. Compensatory damages are awarded to
make
[PAGE 30]
good or replace the loss caused by the wrong or injury and are
confined to compensation. While the purpose of awarding
compensatory damages is not to enable the injured or wronged party
to make a profit on the transaction, compensatory damages involve
the quantum of hurt to a plaintiff resulting from the injury or
wrong. The general rule is that a wrongdoer is liable to the
person injured in compensatory damages for all of the natural and
direct or proximate consequences of his wrongful act or omission
but he is not responsible for the remote consequences of his
wrongful act or omission. Natural consequences are such as might
reasonably have been foreseen, such as occur in an ordinary state
of things. Thus, it is often said, if according to the usual
experience of mankind the result was to be expected, it is not too
remote.
An act or omission is the proximate cause of a loss where
there is no intervening, independent, culpable and controlling
cause severing the connection between the wrongful act or omission
and the claimed loss. Thus, an intermediate cause which,
disconnected from the primary act or omission, produces the injury
or loss will be regarded as the proximate cause. It is sufficient
if it is established that the defendant's act produced or set in
motion other agencies, which in turn produced or contributed to the
final result. Moreover, although an act of the plaintiff may have
intervened between defendant's wrong and the injury suffered, the
defendant is not thereby excused if the intervening act was the
result of or was naturally and reasonably induced by his earlier
wrong. While the plaintiff is not entitled to recover damages for
conditions which are due entirely to a previous disease, the
defendant may be liable for damages if his wrongful act aggravated
or exacerbated such disease or impairment of health. Thus, the
wrongdoer is not exonerated from liability if, by reason of some
pre-existing condition, his victim is more susceptible to injury
and the plaintiff may recover such damages as proximately result
from the activation or aggravation of a dormant disease or
condition. Heart disease was recognized as a pre-existing
condition in Firkol v. A.R. Glen Corp., 223 F. Supp. 163
(D.C.N.J. 1963). As between an innocent and a wrongful cause, the
law uniformly regards the latter as the proximate and legally
responsible cause.
It is also well-settled that damages which are uncertain,
contingent or speculative in their nature cannot be recovered as
compensatory damages. Where a cause of action is complete and no
subsequent action may be maintained, a recovery may be had for
prospective and anticipated damages reasonably certain to accrue.
Thus, damages are not restricted to the period ending with the
[PAGE 31]
institution of the suit and where it is established that there will
be future effects sustained by the plaintiff as a result of the
wrongful act or injury, damages for such effects may be awarded.
The rule of "avoidable consequences," which is supplementary to the
rule that a wrongdoer is responsible for the consequences of his
misconduct, and is distinguishable from contributory negligence,
imposes a duty on the injured person to minimize damages. Thus, no
recovery may be had for losses which the injured person might have
prevented by reasonable efforts and expenditures.
In general, one injured by another's wrong is entitled to
compensation for all peculiar losses sustained and the burden of
such losses falls on the party who occasioned it. Thus, it is
generally declared that loss of earnings, wage, salary or other
benefit is an element of damages which should be considered,
provided that such earnings are not of a speculative or conjectural
nature and that they are proved with reasonable certainty. Future
earnings, or probable loss of earnings in the future, may be
awarded if shown with reasonable certainty and are not speculative
in character. Moreover, loss or impairment of earning capacity is
a proper element of compensatory damages.
In the case at bar, Complainant sustained a
work-related injury on May 15, 1992, was illegally discharged on
May 22, 1992, and collected $26,969.15 in workers' compensation
benefits for such injury. Complainant does not seek an award of
back pay after August 1, 1993 as he has been gainfully employed
since that date. It is well-settled that Complainant bears the
burden of establishing the amount of back pay that Respondents owe
herein. Adams v. Coastal Production Operators, Inc., 89-
ERA-3 (Sec'y Aug. 5, 1992). Because back pay promotes the remedial
statutory purpose of making whole the victims of discrimination,
"unrealistic exactitude is not required" in calculating back pay,
and "uncertainties in determining what an employee would have
earned but for the discrimination, should be resolved against the
discriminating (party)." EEOC v. Enterprise Ass'n Steamfitters
Local No. 638, 542 F.2d 579, 587 (2d Cir. 1976), cert.
denied, 430 U.S. 911 (1977), quoting Hairston v. Clean
Trucking Co., 520 F.2d 226, 233 (4TH Cir. 1975). See NLRB
v. Browne, 890 F.2d 605, 608 (2d Cir. 1989) (once the plaintiff
establishes the gross amount of back pay due, the burden shifts to
the defendant to prove facts which would mitigate that liability).
Lederhaus v. Donald Paschen & Midwest Inspection Service,
Ltd., 91-ERA-13 (Sec'y Oct. 26, 1992), slip op. at 9-10.
It is also well-settled that interim earnings in replacement
employment should be deducted from a back pay award. Blackburn
v. Metric Constructors, Inc., 86-ERA-4 (Sec'y Oct. 30, 1991).
[PAGE 32]
The record reflects that Claimant's salary with the
Respondents was $19.55 per hour and, but for the illegal and
discriminatory discharge, would have earned from May 22, 1992 to
August 1, 1993 the amount of $49,004.00. As Complainant received
in workers' compensation benefits from May 21, 1992 through July
26, 1993 the amount of $26,969.15, Complainant is entitled to an
award of $22,034.85. Respondents are entitled to a credit for the
compensation benefits as such amount constitutes replacement income
for his lost wages. Moreover, to deny Respondents this credit
would result in double recovery for Complainant.
Complainant cites several cases in support of his thesis that
Respondents are not entitled to a credit for the workers'
compensation benefits he has received. However, those cases are
clearly distinguishable as they relate to cases in which the
defendants' actions caused the injury for which the benefits were
received. In the instant case, Complainant received the benefits
for the back injury he sustained while lifting a patient on May 15,
1992 and he was terminated on May 22, 1992. Thus, the workers'
compensation benefits are not related to the discriminatory
discharge but to a work-related back injury, and are, therefore,
replacement income for his inability to return to work.
Attorney's Fees and Costs
Attorney Michael A. Lilly shall be awarded a fee for the
thorough and professional manner in which he has successfully
presented this claim. Such fee award is specifically permitted by
the Act. Mr. Lilly has already filed a fee petition (CX 23) in the
amount of $32,010.44 relating to those legal services rendered and
costs incurred between August 19, 1992 and June 30, 1994. The fee
was filed at the hearing as part of Complainant's exhibits and
Respondents have interposed no objections thereon.
I have reviewed the fee petition and conclude that the fee
petition as submitted is most reasonable and proper in view of the
thorough and professional manner in which Complainant's counsel has
successfully prosecuted this matter, initially before the Secretary
and herein before the Office of Administrative Law Judges.
Thus, Attorney Michael A. Lilly is awarded the requested fee.
Compensatory Damages
It is now well-settled that "the measure of compensatory
damages is such sum as will compensate the person injured for the
[PAGE 33]
loss sustained, with the least burden to the wrongdoer consistent
with the idea of fair compensation." 25 Corpus Juris
Secundum, Section 71. Compensatory damages may include general
damages for mental anguish and for physical pain and suffering, and
can include injury to reputation as a compensable psychic injury,
which is a portion of the emotional distress damages and may
include mental anguish, emotional strain and mental suffering.
Nahmod, Civil Rights and Civil Liberties Litigation, Section
4.03, "Compensatory Damages." The Court of Appeals for the Seventh
Circuit has taken the approach, when awarding damages in wrongful
discharge cases, to look at the range of awards previously made.
Fleming v. County of Kane, State of Illinois, 898 F.2d 553
(7th Cir. 1990). In Fleming, the Court approved $40,000.00
as within the range for the emotional distress arising from the
discriminatory discharge.
In Fleming, the final damage award, in the amount of
$157,574.19, was comprised of the following elements: $87,283.99
for lost, past and future earnings; $30,290.20 as compensation for
Fleming's premature withdrawal from his annuity; and $40,000.00 for
emotional distress, reduced from $120,000 by the $80,000
remittitur. The Court approved the award of $40,000 for Fleming's
emotional distress as the "record in (that) case does show a
rational connection between the evidence and the damage award," the
Court noting that the jury accepted Fleming's testimony "describing
(his) humiliation at being subjected to defendants' adopted course
of 'progressive discipline'," his "embarrassment and humiliation at
being reprimanded in front of his fellow employees, some of whom he
had worked with for many years," the "depression he suffered during
the period in question, as well as to serious headaches and
sleeplessness," as well as his doctor's testimony "that the job
stress which Fleming experienced during this period may have
resulted in an aggravation of his physical condition." Fleming,
supra at 562.
Moreover, that Court's "review of those cases (wherein damages
for emotional stress are sought) led us to the conclusion that
damage awards in this context have ranged from 500 to over $40,000.
Mr. Fleming was awarded $40,000 for emotional distress. Although
this award falls within the upper limits of that range, we do not
conclude that it is out of line with other cases in similar
contexts. See, e.g., Ramsey v. American Air Filter Co.,
Inc., 772 F.2d 1303, 1313 (7th Cir. 1985) ($35,000 was
determined to be outermost award that could be supported by the
record in §1981 race discrimination case)." Fleming,
supra at 562.
Section 5851 of the ERA permits the award of compensatory
damages. Emotional/mental distress damages are compensatory
[PAGE 34]
damages. Damages, 22 Am. Jr. 2d § 259. Black's Law
Dictionary also defines actual damages as "synonymous with
'compensatory damages' and with 'general damages.'" Id at
352. The rationale is that compensatory damages are damages which
compensate a person for injuries incurred as a result of
defendant's wrongful conduct. Accordingly, compensatory damages
include damages for emotional distress:
It is not necessary to determine that the
Zoo's conduct was outrageous in order to award Ms.
Haynes compensatory damages for emotional distress,
because the emotional injury is a direct result of
the Zoo's tortious conduct, not an independent
tort.
Haynes v. Zoological Society of Cincinnati, 567 N.E.2d 1048,
1051 (Ohio 1990). Numerous other cases, including civil rights
cases have similarly held that "[d]amages for emotional distress or
mental suffering or humiliation are compensatory ..." Amos v.
Prom, 115 F. Supp. 127, 132 (N.D. Iowas 1953) See White v.
A.D.M. Milling Co., 93 F.R.D. 872, 874 (W.D. Mo. 1982)
("[c]ompensatory damages under 42 U.S.C. § 1983 may include in
an appropriate case mental and emotional distress. [Citing
Carey v. Piphus, 435 US 247 (1978).] Likewise, compensatory
damages for mental distress are an appropriate remedy under §
1981."); Ruhlman v. Hakinson, 461 F. Supp. 145, 151 (W.D.
Pa. 1978) ("Compensatory damages for emotional distress are
recoverable in a civil rights action. Filasky v. Preferred Risk
Mut. Ins. Co., 734 P.2d 76, 83 (Ariz. 1987) ("the record fully
justifies the jury's award of $100,000 in compensatory damages for
emotional distress and attorneys' fees."); Alabama Power Company
v. Mosley, 318 So.2d 260, 266 (Ala. 1975)("There is no fixed
standard for ascertainment of compensatory damages recoverable here
for physical pain and mental suffering, but the amount of such
award is left to the sound discretion of the jury, subject only to
correction by the court for clear abuse or passionate exercise of
that discretion. Campbell v. Animal Quarantine Station, 63
Haw. 557 (1981)("Such damages may include reasonable compensation
for emotional distress .."); Hawaii Federal Asbestos Cases,
734 F. Supp. 1563 (D. Haw. 1990)(mental anguish is compensable as
general damages); Gorab v. Equity General Agents, Inc., 661
P.2d 1196, 1199 (Colo. App. 1983) (injured person "may be entitled
to compensatory damages, including damages for emotional distress
..."); and Farmers Home Mut. Ins. Co. v. Fiscus, 725 P.2d
234, 236 (Nev. 1986)(court upheld award of "mental and emotional
distress damages" as "compensatory damages"). Therefore, as a
measure of compensatory damages, Smith is entitled to a recommended
award of emotional/mental distress damages in an amount determined
[PAGE 35]
in the discretion of this Administrative Law Judge.
Complainant suggests that this Administrative Law Judge use
the per diem system as a method of quantifying damages for pain and
suffering based on a mathematical formula. 1 Jerome H. Nates et
al., Damages in Tort Actions, § 4.70 at 4-262 (1994). The
propriety of the per diem thesis "turns on the court's confidence
in the ability of the juror to parse the testimony and determine
for himself what is true or untrue, exaggerated or reasonable with
respect to damages for pain and suffering." Barretto v.
Akau, ____ Haw., _____, 463 P.2d 917, 923 (1969).
Accordingly, using the minimum wage on a per diem basis may be an
acceptable method of calculating emotional/mental distress damages
according to Complainant.
I cannot accept Complainant's per diem thesis as that would
greatly exaggerate the mental stress sustained by Complainant and
would greatly differ from comparable awards in this area.
In view of the foregoing precedents, and based upon the
totality of this closed record, including Dr. Marvit's medical
reports, and my observation of Complainant's demeanor, I hereby
award Complainant the additional amount of $10,000.00 as
compensatory damages for the emotional pain, mental anguish and the
emotional stress he has experienced herein, as well as the damage
to his reputation in the nuclear power industry, an industry which
requires impeccable personal credentials.
Complainant is also entitled to an award of future psychiatric
counselling with Robert C. Marvit, M.D., as I find and conclude
that such counselling, as recommended by Dr. Marvit, in his April
25, 1994 Supplemental Complex Medical Evaluation (CX 18), is
most reasonable, necessary and appropriate to restore Complainant
to the status quo ante he enjoyed prior to his
discriminatory discharge on May 22, 1992. Dr. Marvit has estimated
that such therapy over the next eighteen to twenty-four months
shall cost about $10,000.00
Thus, Complainant is entitled to an award of such medical
benefits, as well as payment of Dr. Marvit's outstanding medical
bill in the amount of ,250.00. (CX 19)
RECOMMENDED ORDER
Accordingly, I find and conclude that Complainant is
entitled to the following specific relief under the Act because
adverse action was taken by Respondents with respect to
Complainant's employment status in violation of the Act.
[PAGE 36]
CONCLUSION
For the reasons set forth above, this Court finds that (1)
Complainant was discharged from his employment with Respondents and
that he was the subject of adverse employment action, (2)
Complainant has established that he was engaged in protected
activity under the Act, (3) Complainant established a prima
facie case of retaliatory discharge by Respondents and (4)
Respondents' witnesses were, in certain material respects, less
that candid to such an extent that I have credited Complainant's
version in those areas of inconsistencies.
REMEDY
As Complainant seeks reinstatement with the Respondent, he
shall be immediately reinstated by the Respondents to his former
position. He is entitled to the specific damages awarded herein
plus appropriate interest, commencing on May 22, 1992 and
continuing until such time as Respondents pay the amount of the
award to Complainant. Appropriate interest shall be paid on the
award in accordance with 26 U.S.C. §6621. Park v. McLean
Transportation Services, Inc., 91-STA-47 (Sec'y June 15, 1992).
Respondents submit that Complainant is not entitled to
reinstatement as he rejected the Respondents' offer of
reinstatement made by letter dated February 18, 1993 (sic). In
said letter Respondents' counsel advised Complainant's attorney as
follows (RX 4):
"On behalf of our clients, Richard L. Littenberg, M.D. and
Honolulu Medical Group, this is an unconditional offer of
reinstatement to your client, Richard Smith, to return to work at
HMG in his former position as a nuclear medical technician
effective March 7, 1994. This offer is made without prejudice to
either party's position in the pending administrative or civil
proceedings.
"Mr. Smith will be reinstated to his former position at his
former rate of pay with all attendant benefits. Mr. Smith would
perform essentially the same duties; however, there is no longer an
assistant and to the extent that he has the time available, he
would also be called upon to perform other related tasks as
directed by the Director of Nursing who now supervises the nuclear
[PAGE 37]
medical technician. To the extent that he requires assistance in
any physical tasks, it will be provided to him upon request. Mr.
Smith would work a 40 hour schedule consisting of four week days,
a half day Thursday mornings, and Saturday mornings from 8:00 a.m.
to 12:00 p.m. This is also consistent with the schedule now worked
by the incumbent nuclear medical technician.
"This offer is made in accordance with the Supreme Court's
decision in Ford Motor Company v. EEOC, 458 U.S. 219 (1982).
If you do not believe that this is a bona fide unconditional offer
of reinstatement or if you have any questions about it, please let
me know immediately. Otherwise, please provide me with Mr. Smith's
response no later than March 3, 1994."
However, Complainant rejected the reinstatement offer for the
following reasons:
Initially, Complainant submits that there was no
unconditional offer of reinstatement. An offer of
reinstatement does not constitute an unconditional offer if it is
demeaning ("the unemployed or underemployed claimant need not go
into another line of work, accept a demotion or take a demeaning
position . . ." Ford Motor Company,supra at 231) or
had different conditions of employment and benefits (Good Foods
Manufacturing & Processing Corp, 195 NLRB 418, 419 (1972)
(cited with approval by Ford, supra at 231 n.16).
The job offered by Respondents was demeaning and had different
conditions of employment and benefits in the following respects,
according to Complainant.
At all times during Complainant's employment, he was directly
supervised by Dr. Littenberg, a licensed nuclear medicine
physician. The offered job would have had Complainant working for
the Director of Nursing who was NOT licensed in nuclear medicine.
Complaint had never worked for a Director of Nursing. In fact, his
predecessor at Honolulu Medical Group worked for the Director of
Nursing, a situation which turned out to be a problem for the
predecessor because the Director lacked knowledge of nuclear
medicine and yet would evaluate him on his nuclear medicine skills.
The Director did not understand what he was doing, such as
following nuclear regulatory guidelines, radiation safety,
equipment calibration, ordering radio pharmaceuticals and
administering radio pharmaceuticals. It was for that reason the
Complainant specifically required as a condition of employment that
he not work for the Director of Nursing, but rather for Dr.
Littenberg personally. Unless Complainant was supervised directly
[PAGE 38]
by Dr. Littenberg, any job offer would not be unconditional and
would constitute a substantial alteration of the working
relationship and possibly compromise the safety of patients,
according to Complainant, who also pointed out that the offered job
also required work on Saturdays, which was never required before.
Historically, Complainant worked Mondays through Fridays, with the
weekends off.
In view of the foregoing, I find and conclude that Complainant
is entitled to immediate reinstatement herein as Respondents' job
offer was not unconditional as it would have not returned him to
his previous job, together with the benefits and privileges he
formerly enjoyed, due to the different and charged conditions of
the proferred employment.
Thus, Complainant is entitled to immediate reinstatement at
his former position at HMG, together with all of the benefits and
privileges he formerly enjoyed.
Complainant has sustained his burden of mitigating damages as
he accepted the first offer of permanent employment made to him by
the Castle Medical Center on August 1, 1993.
Accordingly, Complainant is entitled to an award of damages,
back pay and compensatory damages in the amount of $43,284.85, as
specifically discussed and awarded above, from May 22, 1992 to the
date of actual payment, including appropriate interest thereon.
Complainant is also entitled to a provision herein directing
that Respondents immediately expunge from Complainant's personnel
records all derogatory or negative information contained therein
relating to Complainant's work for the Respondents and his
termination on September 10, 1992. Respondents shall also provide
neutral employment references when inquiry is made about
Complainant by another firm, or entity or organization or
individual.
ORDER[5]
It is therefore ORDERED that Respondents shall
pay to Complainant the amount of $43,284.85, as further identified
below, commencing on May 22, 1992 and continuing until payment of
the award by Respondents, plus appropriate interest at the IRS
rate, computed until the date of payment to Complainant.
It is further ORDERED that Respondents shall
immediately
[PAGE 39]
expunge from Complainant's personnel records all derogatory or
negative information contained therein relating to Complainant's
employment with the Respondents and his termination on May 22,
1992. Respondents shall also provide neutral employment references
when inquiry is made about Complainant by another firm, entity,
organization or an individual.
It is further ORDERED that Respondents shall pay to
Michael A. Lilly a reasonable fee in the amount of $32,010.44 for
representing Complainant between August 19, 1992 and June 30, 1994.
It is therefore ordered that:
1. Smith shall be immediately reinstated at his
position with HMG with the same terms and conditions he
enjoyed before his termination.
2. Respondents shall pay Smith the following
compensatory damages:
a. Lost wages of $22,034.85.
b. Emotional distress damages of $10,000.00
c. Dr. Marvit's bill of ,250.
d. Future medical treatment costs of $10,000.00
3. Respondents shall purge from their records all
references to Smith's termination, including but not limited
to:
a. Littenberg's May 18 and 19, 1992 notes to file.
Exhibit 3 at E-185.
b. Littenberg's May 21, 1992 notes to file.
Exhibit 3 at E-186.
4. Littenberg is instructed to inform the NRC in
writing of the following:
a. That his letter of July 30, 1992 incorrectly
stated Smith's "[m]ultiple vacations, trips and both
excused and unexcused absences had created significant
interruptions in the Nuclear Medicine laboratory
function." Exhibit 3 at E-159. Littenberg shall inform
the NRC that Smith did not regularly take vacations (for
which he was paid by HMG) and was rarely out on sick
leave or for any other reason.
b. That his letter of July 30, 1992 further
incorrectly stated "[t]emporary technologists on an
[PAGE 40]
emergency basis were often required." Id. Littenberg shall
inform the NRC that because of Smith's work history and lack of
absences, temporary technologists on an emergency basis were not
"often" required.
c. That his letter of July 30, 1992 further
incorrectly stated, "Mr. Tajima's job description was
developed conjointly by both Mr. smith and myself."
Id. Littenberg shall inform the NRC that Smith
did not develop the job description since he did not see
the description until he was sent some materials sometime
in the fall of 1992 after he was terminated.
d. That his letter of July 30, 1992 further
incorrectly stated, "The records clearly state that David
was performing the wipe test and instrument calibration
with the exception of the gamma camera prior to the
departure of Mr. Smith for a matter of many months."
Id. at E-160. Littenberg shall inform the NRC
that Tajima was not calibrating equipment since he was
not qualified to perform and was incapable of performing
that function.
e. That his letter of July 30, 1992 further
incorrectly stated, "... Mr. Smith's 'alleged injury' led
to his 'unexplained disappearance' ..." Id.
Littenberg shall inform the NRC that Smith was on
workers' compensation from May 18, 1992, and had called
HMG to inform them of his injury and that Littenberg knew
as of May 18th that Smith was on workers' compensation.
f. That his letter of July 30, 1992 further
incorrectly stated, "On the dates noted, David Tajima
continued doing his preassigned duties and continued
imaging patients which he had been doing under Mr.
Smith's tutelage for the prior eight months." Id.
Littenberg shall inform the NRC that Tajima was not
qualified or capable of performing the duties Littenberg
states he was performing.
g. That his letter of July 30, 1992 further
incorrectly stated, "This was the only job function that
David Tajima had not done previously on his own."
Id. Littenberg shall inform the NRC that this was
not true.
h. That his letter of October 7, 1992 to the NRC
incorrectly stated that Smith "actually abandoned his
position on May 18 and 19, 1992." Littenberg shall
inform the NRC that Smith did not abandon his job and
[PAGE 41]
Littenberg knew it. Exhibit 3 at E-156.
i. That his letter of October 7, 1992 further
incorrectly stated, "[a]s I was preparing documents to
FedEx to Mr. Smith notifying him of his termination for
abandonment of his position and after hiring a new
certified nuclear medicine technologist, I received Mr.
Smith's letter, dated May 20, 1992." Id.
Littenberg shall inform the NRC that, because Smith did
not abandon his job, Littenberg was not preparing a
letter to that effect.
k. That his letter of October 7, 1992 further
incorrectly stated, "... Mr. Smith, who participated in
the formulation of the Nuclear Medicine Assistant job
description ..." Id. Littenberg shall inform the
NRC that Smith did not participate in the formation of
the job description.
l. That his May 18 and 19, 1992 notes to file,
which he sent to the NRC, were incorrect. Exhibit 3 at
E-185. Littenberg is instructed to inform the NRC that
Smith called in both days and Littenberg knew Smith was
ill with a workers' compensation claim.
m. That his May 21, 1992 notes to file, which he
sent to the NRC, incorrectly stated, "David is only doing
the same functions he has done in the past. Any lack of
training is directly attributable to the dereliction of
duty on the part of Mr. Smith. David is still
calibrating equipment exactly as he has been doing in the
past." Exhibit 3 at E-186. Littenberg is instructed to
inform the NRC that Tajima had not been calibrating
equipment.
n. That his May 18, 1992 notes to file, which he
sent to the NRC, incorrectly stated, "Rick did not show
up for work. He did not call me, his supervisor as
clearly outlined in the Personnel policy." Exhibit 3 at
E-185. Littenberg is instructed to inform the NRC that
Smith in fact did call HMG that morning and left word he
had suffered a work related injury and would not be in to
work.
o. That his May 19, 1992 notes to file, which he
sent to the NRC, incorrectly stated that he was
considering terminating Smith for "abandonment of
[PAGE 42]
position." Exhibit 3 at E-185. Littenberg is instructed to inform
the NRC that he knew Smith had not abandoned his position, but
rather knew he was on a work related injury.
5. Littenberg shall inform Industrial Indemnity of the
following:
a. That Littenberg's recorded statement incorrectly
stated, "Smith has a history of being out from work on a
... regular basis." Exhibit 11 at E-240. Littenberg is
instructed to inform Industrial Indemnity that smith had
a history of not taking vacations for which he was paid.
b. That Littenberg's recorded statement further
incorrectly stated, "job evaluations ... indicated a
repetitive fashion, that he was antagonistic towards the
rest of the staff ..." Id. at E-241. Littenberg
shall inform Industrial Indemnity that Smith's job
evaluations demonstrated that he worked well with others.
c. That Littenberg's recorded statement further
incorrectly stated, "Rick was out sick enough that ...
the laboratory was placed in jeopardy ..." Id.
Littenberg shall inform Industrial Indemnity that Smith
was rarely out sick and therefore could not have placed
the laboratory in jeopardy.
d. That Littenberg's recorded statement further
incorrectly stated, "This time he just stopped showing up
for work, he didn't contact me ..." Id. at E-242.
Littenberg is instructed to inform Industrial Indemnity
that Smith did not just stop showing up, that he had
contacted Littenberg through Ferrer and that Littenberg
knew he had suffered a work injury.
DAVID W. DI NARDIADMINISTRATIVE LAW JUDGE
Dated:
Boston, Massachusetts
DWD:gcb
[ENDNOTES]
[1] The following abbreviation shall be used herein: "ALJ"-
Administrative Law Judge Exhibits, "CX"-Complainant Exhibits,
"DX"-Administrator Exhibits, "EX"-Respondent Exhibits, "TR"-
Transcript.
[2] Respondent waived its right to a hearing on the issue of
liability when it declined to seek a hearing within five days of
receipt of the District Director's findings and order.
[3] There is a dispute regarding whether or not purely internal
complaints to management constitute protected activity, however,
the Secretary of Labor has issued decisions which find that an
employee is protected when engaging in this particular activity.
See S. KOHN, THE WHISTLEBLOWER LITIGATION HANDBOOK 37, 43
(1990); compare Kansas Gas & Elec. Co. v. Brock, 780 F.2d
1505 (10th Cir. 1985), cert. denied, 478 U.S. 1011 (1986)
(court upheld Secretary of Labor's position that employee
protection provision of Energy Reorganization Act protects purely
internal complaints) with Brown & Root, Inc. v.
Donovan, 747 F.2d 1029 (5th Cir. 1984) (court held that
quality control inspector's internal filing of intracorporate
complaint was not protected activity).
[4] Exhibit R-4 is incorrectly dated February 18, 1993; it
in fact was dated 1994.
[5] The Final Order shall be issued by the Secretary of Labor.
