U.S. Department of Labor Office of Administrative Law Judges
John W. McCormack Post Office and Courthouse
Boston, Massachusetts 02109
Room 507
(617) 223-9355
(617) 223-4254 (FAX)
DATED: December 1, 1997
Case No.: 93-ERA-24
File No.: 93-107-08298
In the Matter of:
CALVIN J. CREEKMORE
Complainant
v.
ABB POWER SYSTEMS ENERGY
SERVICES, INC., and
OCTAGON, INC.
Respondents
APPEARANCE:
Robert W. Heagney, Esq.
For the Complainant
James M. Paulson, Esq.
John W. Susen, Esq.
For the Respondents
BEFORE: David W. Di Nardi Administrative Law Judge
Supplemental Recommended Decision and Order on
Remand
PROCEDURAL HISTORY
This Administrative Law Judge, by Recommended Decision and Order
[Page 2]
issued on September 1, 1994, concluded inter alia, that Calvin Creekmore
("Complainant" herein), had been engaged in protected activity, that the management
and employees of ABB Power Systems Energy Services, Inc. ("Respondent") were
aware of such protected activity and that Complainant had been subjected to adverse personnel
action as a result thereof. As this Judge concluded that reinstatement was not appropriate in the
factual scenario presented herein, front pay, other damages and benefits were awarded to
Complainant.
Respondents, vigorously protesting that Complainant is entitled to the
award of damages he seeks, submit that he is entitled only to these damages:
The following are calculations of the back pay damages, less severance pay
offset and mitigation, which may be due to Mr. Creekmore under the current status of the case.
As set forth above, Respondents contend that Mr. Creekmore would have been laid off in April
1994, when PSESI was sold. Hence, Mr. Creekmore's back pay would cease in April 1994 (and
Mr. Creekmore would be entitled to $4,200.00 in back pay). This amount is more than offset by
Mr. Creekmore's interim earnings, as reflected herein.
Alternatively, the following calculations reflect potential amounts of back
pay and other benefits to which Mr. Creekmore would be entitled through March 24, 1995, when
Mr. Chalfant was terminated and after which PSESI effectively completed exiting the business
and ceased QA/QC functions. See generallyVan Beck v. Daniel Construction
Co., Case No. 86-ERA-26, Dec. and Remand Ord., Aug. 3, 1993, slip op. at 6 (back pay
[Page 20]
ends when job definitively eliminated).
A. Back Wages AmountMaximum Back Wages
Sept 1992 (lay off date) until May 1993 -0-
[During this period, Mr. Creekmore received
full severance from PSESI and therefore is
not entitled to any back wages award]
June 1993 until April 1994 (PSESI sale date) $ 4,200.00
[During this period, Mr. Creekmore's PSESI
salary would have been $66,040 annually,
while his salary with the Atlantic Group
during this period was $61,000.00 annually.
The difference between these two salaries
for this period is $5,040.00 annually, or
$420.00 per month (i.e. $5040.00 divided
by 12 equals $420.00). Therefore, for
this 10 month period, the lost wages equal
$4,200.00 ($420 x 10).]
May 1994 until March 1995 (date of Mr. $10,123.30
Chalfant's termination)
[Effective June 1994, PSESI employees who
relocated to Florida received a 10% merit
increase in their salary. His salary from
June 1994 until the last possible date of
employment in March 1995 would therefore
have been $72,644.00 annually (10% greater
than $66,040.00), or $6053.66 per month
($72,644.00 divided by 12 months).
Assuming that Mr. Creekmore would have
received this increase and assuming that
the salary he actually received at the
Atlantic Group remained constant, he would
therefore have an annual difference in
salary for the period after June 1994 of
$11,644.00, or have lost at a maximum
$970.33 per month ($11,644.00 divided
by 12) for the months between June 1994
and March 1995. Therefore, the amount of
lost wages would be $9,703.30 ($970.33
x 10 months). Mr. Creekmore would also
be entitled to $420.00 for the month of
May 1994, before any salary increase took
effect at PSESI. This makes the maximum
[Page 21]
total lost wages for this period $10,123.30
($9,703.30 plus $420.00)]Subtotal Back Wages Owed$14,323.30Mitigation Amount
Total Offset for Mitigated Interim Earnings <$32,978>[This amount is comprised of wages earned by
Mr. Creekmore from National Inspection between
September 1992 and February 1993 (totaling
$18,315.00) and wages earned at Atlantic Group
between March 1993 and May 1993, when Mr.
Creekmore was earning PSESI severance as well
(totaling $14,663)]TOTAL OF BACK WAGES, LESS MITIGATION OFFSETHence, because of the severance already
paid to Mr. Creekmore and the mitigation
off-sets, Mr. Creekmore is not entitled to any
damages for lost wages, and Respondents have a
credit of $18,654.70 against damages for lost
vacation and lost pension benefits.B.Lost VacationAmount
Sept. 1992 until March 1993 (date $ 2,538.00
Atlantic Group employment began)
[During this period, Mr. Creekmore is entitled
to the salary value of the vacation he lost.
He was entitled to 4 weeks vacation when he
was laid off. Mr. Creekmore's annual salary
was $66,040.00, or ,270 per week. Hence,
the value of his four weeks vacation for the
entire year was $5,080.00 (,270.00 x. 4).
The monthly value of Mr. Creekmore's vacation
is then $423.00 per month ($5,080 divided by 12
months). The value of these 6 months of lost
vacation is therefore $2,538.00 ($423/month x
6 months)].
Apr. 1993 until May 1994 (date of $ 2,954.00
salary increase)
[During this period, Mr. Creekmore lost only
two weeks of vacation per year because he
began to receive 2 weeks of vacation from the
Atlantic Group, his new employer. As noted
above, Mr. Creekmore's PSESI salary at the
[Page 22]
time of his lay off was ,270 per week, making
the annual value of the two weeks lost
vacation for this period equal $2,540.00, or
$211.00 per month ($2,540.00 divided by 12).
Therefore, for these 14 months, the value of
the lost vacation is $2,954.00]
June 1994 until Mar. 1995 (date of $ 2,328.33
final termination)
[As noted previously, Mr. Creekmore would
have received a 10% salary increase after
the PSESI move to Florida, and his annual
salary beginning in June 1994 would have
become $72,644.00, or ,397.00 per week
($72,644.00 divided by 52 weeks). Hence,
the value of his two weeks vacation for the
entire year would be $2,794.00 (,397.00
x. 2). The monthly value of Mr. Creekmore's
vacation during this period is therefore
$232.83 per month ($2,794.00 divided by 12
months). The value of lost vacation for
this 10 month period is therefore $2,328.33
($232.83/month x 10 months)].
Subtotal of Lost Vacation$ 7,820.33Less carried over salary<18,654.70>offset (above)TOTAL OF LOST VACATION,LESS MITIGATION OFFSET<10,834.37>
The Deputy Secretary also remanded this matter to determine whether Mr.
Creekmore would have had moving expenses reimbursed by Respondent if he had moved to
Florida when Respondent was sold and to award relocation expenses to which Mr. Creekmore is
entitled, if any. See Supplemental Order Concerning Remand, dated April 10, 1996, at
4. The PSESI relocation policy issued in June 1994 outlines that PSESI managers were entitled
to (1) one hunting trip for two people for three days; (2) moving household goods to the new
location; (3) allowance for two weeks gross pay for miscellaneous expenses; and (4) the cost to
register two automobiles in Florida. (RX 50) At the hearing Mr. Creekmore submitted an exhibit
listing every expense he incurred in relocating to Virginia. (CX 80) On cross-examination he
acknowledged that CX 80 did not take into consideration what relocation expenses he would
have received had he stayed with PSESI. Accordingly, only item 7 (listed as moving expense)
on CX 80 are expenses that he incurred for which he is entitled to be awarded as damages. Mr.
Creekmore submitted no evidence as to what expenses he incurred on other items for which he
would have received reimbursement under the PSESI policy. As Mr. Creekmore has the burden
of proving his damages, he is entitled to only the moving expense he listed, according to
Respondents.
B. Health Insurance and Medical Expenses.
Mr. Creekmore testified that he currently belongs to the Tri-Gon Blue
Cross/Blue Shield program and that his monthly premium co-pay is $75 per month. (Tr. 1491).
On the other hand, RX 56 shows that had Mr. Creekmore not been laid off from PSESI, his
employee co-payment would have been either $205.00 per month or $188.00 per month,
depending on which health plan he chose. In any event, the cost of his health insurance is clearly
less at the Atlantic Group than if he had stayed with PSESI. Accordingly, he has no damages in
this regard.
[Page 24]
Mr. Creekmore submitted a list of all unreimbursed medical expenses
related to his heart condition as CX 81. This exhibit makes no effort to determine whether or not
he would have been reimbursed for these expenses if he had not been laid off. (Tr. 1485). As he
is only entitled to be made whole, he has not satisfied his burden of proving his damages on this
matter.15
As noted, my mandate includes the following:
[Page 27]
"On remand, the ALJ may take evidence concerning whether Creekmore
sustained expenses for relocating to Virginia that were not reimbursed by his new employer and
that would have been reimbursed by Respondent if he had made the move to Florida when
PSESI was sold." The ALJ shall recommend the amount of relocation expenses to which
Creekmore is entitled, if any." (Supp. Order Concerning Remand, April 10,
1996 at 4).
A complainant in an employment discrimination action is not required to
seek or accept employment, even of a similar nature to that lost position, when such employment
is located a distance from his home. Smith v. Concordia Parish School Board, 378
F.Supp. 887 (W.D.La. 1975).
Moving expenses incurred to obtain employment and thus mitigate the
Respondents' obligation for back wages should properly be deducted from the mitigating wages
as these were reasonable and necessary to begin the mitigating employment. Graffices v.
Control Data, 5' F.E.P. Cases 355 (Minn. Ct. App. 1989); McKnight v. General
Motors Corp., 49 F.E.P. Cases 10 (D.C.E.Wis. 1989); McDowell v. Mississippi
Power and Light, 44 F.E.P. Cases 1088 (D.C. Miss. 1986); Thomas v. Cooper
Industries, Inc., 39 F.E.P. Cases 1826 (D.C.N.C. 1986).
Complainant further submits that he should receive the award of his
reasonable relocating expenses as said expenses were incurred solely to mitigate the losses he
had incurred as a result of his illegal termination by the Respondent. Mr. Creekmore had no duty
to relocate to Virginia from Connecticut to mitigate his damages. The fact that PSESI employees
were relocated to Florida at a later date does not alter this analysis, according to Complainant.
Accordingly, as Complainant was not reimbursed by his current employer
for his move to Virginia and as I have already concluded that Complainant is entitled to the same
relocation program offered to Mr. Chalfant, I find and conclude that Complainant is entitled to
the award of $30,198.00 as reimbursement of relocation expenses as such reimbursement would
have been received by Complainant if he had made the move to Florida when PSESI was sold.
On this issue, I find and conclude that Complainant is entitled to the same
relocation plan offered to Mr. Chalfant and this plan is delineated at items #18 and #19 above.
Accordingly, as Complainant would have received the amount of
$30,198.00, the totals of Items #18 and 19, but for his illegal and discriminatory
termination, I find and conclude that Complainant is entitled to that amount. Complainant
[Page 28]
has utilized a most reasonable method to identify these relocation expenses and I simply cannot
accept Respondents' thesis that Complainant is entitled only to the moving expenses he has
identified as item 7 (listed at moving expenses). Complainant must be treated the same as other
similarly-situated employees and while PSESI had a relocation program in writing, each specific
relocation was the subject of specific negotiation and, as Mr. Chalfant was able to work out a
most favorable relocation plan, Complainant, as a dedicated and conscientious employee with
PSESI for twenty-seven (27) years, is also entitled to a similar, most favorable relocation plan.
Thus, Complainant is awarded the amount of $30,198.00 in relocation
expenses as such amount is fair, reasonable and appropriate.
With reference to his medical expenses, Complainant requests that I draw
these reasonable inferences:
1. Mr. Creekmore has incurred $9,321.08 in medical expenses related
to his stress, hypertension and heart disease. (CX 81, CX-82, CX-70; Tr. 1427, 1434-1436,
1442)
2. Mr. Creekmore has incurred and will continue to incur $75.00 per
month for drug therapy related to his stress, hypertension and heart disease, a future cost to age
65 of $9,000.00. (Tr. 1487, 1492)
I have already ruled that Complainant's cardiac condition was causally
related to the stress and hypertension he suffers and that such condition arises out of this
termination. (CX 70; CX 82; Tr. 1479-1485; Recommended Decision and Order,
September 1, 1994 at 37; Decision and Remand Order, February 14, 1996 at 24-25).
Complainant again requests that the unreimbursed medical expenses
related to his stress, hypertension and heart disease should be paid by Respondents, whether
awarded as additional compensatory damages or otherwise because but for the Respondents'
illegal conduct, these expenses would not have been incurred and as they are the end
product of Respondents' conduct, they should be paid by Respondents. The totality of the facts
establish that the Court's award of compensatory damages should be significantly increased to
compensate Creekmore for the emotional and physical harm he has suffered, according to
Complainant.
With reference to his lost vacation, Complainant submits as follows:
1. When with PSESI, Mr. Creekmore received four weeks vacation
per year and only receives two (2) weeks vacation at The Atlantic Group. (Tr. 1443-47)
2. Mr. Creekmore could and did accrue vacation time at PSESI and
[Page 29]
did not lose said vacation time if it was not taken. (CX 30; Tr. 1447-48)
3. Mr. Creekmore prepared an Exhibit, CX 83, to show the value of
lost vacation to him. (CX-83; Tr. 1445-49)
4. Mr. Creekmore has lost $15,022.00 in lost vacation payments as
the amounts were accruable as he could not afford to take vacation which was unpaid. (Tr. 1443-48; CX-83)
5. Mr. Creekmore will lose for lost vacation approximately ,545.00
per year until 2007 when he turns 65, or $15,450.00 present value. (Note: Neither the 4%
annual increase or 4% present value decrease are applied as this calculation would be a wash.)
Complainant submits that this Court should award him future lost vacation
of $15,450.00 as it fairly represents the financial value that he lost as a result of the termination
impact on his vacation benefit. According to the Complainant, the Deputy Secretary of Labor's
prior decision failed to recognize Mr. Creekmore's financial inability to take vacation which was
unpaid and the fact the untaken vacation at PSESI accrued to Mr. Creekmore and was paid as
cash thereafter.
With reference to Complainant's lost vacation, an amount he estimates at
$15,022.00 for past vacation he could not take and at $15,450.00 for future vacations until 2007,
at which time he attains the age of sixty-five, Respondents submit that his lost vacation ends, at
the latest, in March of 1995, at which time his employment would have ended, and that such
amount is $7,820.33.
As such amount is reasonable and appropriate, Complainant is awarded
that amount for his lost vacation benefits.
VI. What reimbursable costs for transportation to and from the hearings, including
lodging and meals, did Creekmore incur?
Complainant posits the following:
1. Mr. Creekmore presented evidence of expenses of $4,109.26 of
expenses he had incurred directly and ,189.90 of expenses Mr. Creekmore reimbursed the
T.V.A. for the expenses of witness, Randy Wood's, travel, lodging and meals to testify. (Tr.
1450-53; CX 84)
2. Total reimbursable expenses claims by Mr. Creekmore are
$5,299.16 . (Tr. 1450-53; CX 84)
[Page 30]
Complainant points out that PSESI must reimburse Creekmore for
transportation, lodging and meals while attending the hearings (Decision and Remand
Order, February 14, 1996 at 25-26), and because he has presented evidence of reimbursable
costs for travel, lodging and meals to attend the hearing in the amount of $5,299.16, expenses for
which he should be reimbursed.
On this issue, Complainant is absolutely correct that the Respondents must
reimburse Complainant for expenses related to attending the hearing by himself and by Randy
Cross, one of his witnesses. (CX 84) As I find and conclude that this amount of $5,299.16 is
reasonable, necessary and appropriate, Complainant is entitled to an award of those expenses.
Moreover, Complainant has utilized a most reasonable method of presenting such expenses.
Whether or not such methodology would survive an I.R.S. audit is not for this forum to
determine.
VII. Whether interest shall be awarded on all sums awarded but unpaid in the decision
rendered to date from the date of those decisions to the date of payment, and at
what rate?
Complainant requests that I draw these reasonable conclusions:
1. Mr. Creekmore was wrongfully terminated on September 9, 1992
for having raised a nuclear safety issue. Now five years have passed and Mr. Creekmore will
receive some award which, though ordered years ago, has been left unpaid. (SeeDecision and Remand Orders, February 14, 1996)
2. Interest at the I.R.S. rates on outstanding balances would total
$42,111.50 as of July 1, 1997. (CX 85)
3. The I.R.S. rate for underpayment of Federal income taxes
authorized by 26 U.S.C. Section 6621 are as follows for standard quarterly calculation:
As already noted, interest of the back pay award at the rate specified for
underpayment of Federal Income Tax in 26 U.S.C. Section 6621 has been awarded.
(Decision and Remand Order, February 14, 1996 at 19)
[Page 31]
However, interest does not accrue on the compensatory damages award.
(Decision and Remand Order, February 14, 1996 at 25)
According to the Complainant, due to the delay in this matter, the awards
ordered to Creekmore should be awarded interest from February 14, 1996 at the I.R.S.
underpayment rate.
VIII. What attorney's fees, costs and expenses has Mr. Creekmore and his counsel
incurred since the last award of attorney's fees, costs and expenses?
Complainant points out the following:
1. Attorney's fees and costs for the period up to April 23, 1996 have
been awarded to date.
2. On February 12, 1997, Complainant's counsel submitted a request
for fees and costs for the period April 23, 1996 to February 12, 1997. (CX 87)
3. This statement of services and costs requests $13,606.25 to be
awarded as counsel fees and costs. (CX 87)
4. The Respondent has objected to certain limited services relating to
services involving:
A) Connecticut Department of Public Utility Control;
B) Nuclear Regulatory Commission; and
C) Prejudgment Remedy Application.
These times are, respectively:
A) D.P.U.C. 5/2/96 .60
B) N.R.C. 5/28/96 .30
7/17/96 .60
C) P.J.R. 12/10/96 .30
12/11/96 6.70 &.70
1/6/97 .90
1/9/97 .80
[Page 32]
LAW
Counsel fees are authorized by statute and have previously been awarded
without objection in the matter.
ARGUMENT
The legal services related to the Connecticut D.P.U.C. and the N.R.C. total
1.5 hours and thus do not logically deserve debate. Suffice it to say that the Respondents'
attempt to use the preliminary N.R.C. ruling to adversely affect the outcome of this matter has
been withdrawn due, in part, to the action of Complainant's counsel on his behalf. (Decision
and Remand Order, February 14, 1996 at 7)
The proceedings before the Connecticut D.P.U.C. and the N.R.C. are so
inextricably related to the proceeding before me that Attorney Heagney's services, totaling 1.5
hours, are reasonable, necessary and appropriate and, consequently, are the Respondents'
obligation.
Likewise, Attorney Heagney shall be reimbursed for the legal expenses
incurred in researching, drafting and filing a motion relating to the issue of pre-judgment interest.
The test as to whether or not such legal services are reasonable is determined as of the date of
service, and not at some time in the future. As Attorney Heagney believed that the filing of such
motion is reasonable and necessary, especially given the passage of over five (5) years after the
illegal termination, counsel shall be reimbursed for the legal services dealing with that issue.
I agree with counsel that he was attempting to protect the interests of Mr.
Creekmore in assuring payment of any order which might be found in this matter. Though
unsuccessful, no basis exists to deny the recovery of fees which, if successful, would have given
greater protection to plaintiff.
Accordingly, Attorney Heagney is awarded the full award of fees as
requested of $13,606.20 for the period from April 23, 1996 to February 12, 1997.
Attorney Heagney also requests that I adjust his prior attorney's fee hourly
rate from $150.00 to $175.00 for 353.15 hours for the total additional amount of $8,828.75. This
adjustment seems reasonable to reflect the passage of time involved in this matter, especially as I
am unable to award interest on the unpaid fee award.
However, counsel has not cited, and out research has failed to identify, any
precedent permitting this ALJ to make such adjustment. Thus, I am without jurisdiction to award
such additional amount at this time. I do note that counsel has already been reimbursed at the
hourly rate of $173.43 for his services between September 24, 1994 and April 12, 1996. (CX A)
[Page 33]
Complainant further requests time to file a fee petition from February 13,
1997 to date.
Thus, in summary, the Complainant requests the relief specifically
discussed and set forth above as follows:
A. Lost Wages: $ 38,692.00 plus interest
B. Lost Pension (PSESI) $ 35,588.00
Lost Pension (T.V.A. job) $146,728 and $75,506
C. Reimbursable Costs $ 5,299.16
D. Future Lost Wages (Front pay) $ 76,540.00
E. Unreimbursable Medical $ 9,321.08
Expenses
F. Future Drug costs $ 9,000.00
G. Interest on Items Awarded $ 42,111.50
H. Attorney's fees (Third Appl.) $ 13,606.20*
I. Adjust Prior Attorney's Fee
from $150.00 to $175.00 per
hour 353.15 Hrs. X $25.00 $ 8,828.75
J. Lost Vacation $ 15,022.00
K. Lost Future Vacation $ 15,450.00
* Complainant requests permission to file a Supplemental Petition for work through
this portion of this matter.
Finally, Complainant seeks interest on various aspects of his damages
award. Interest is only appropriately accrued in this matter on any back pay awarded. Through
various decisions of the Secretary, it is demonstrated that an award of interest on any other aspect
of damages is inappropriate, according to Respondents.
The Secretary, in evaluating damage awards in ERA cases, has determined
that interest payments are appropriate on awards of back pay; this interest in calculated in
accordance with provisions of 26 U.S.C. § 6621. SeeArtrip v. Ebasco
Services, Inc., Case No. 89-ERA-23, Dec. and Ord., Sept. 27, 1996, slip op. at 6;
Blackburn v. Metric Constructor's, Inc., Case No ERA-4, Sec. Dec. (Dec. and Ord.
on Atty.'s Fees and Damages), Oct. 30, 1991, slip op. at 11-12. Other aspects of any award to
[Page 34]
Complainant are not entitled to accrued interest.
First, the Secretary has conclusively determined that "the ERA does
not authorize interest on costs." Johnson v. Bechtel Construction Co., Case
No. 95-ERA-0011, Supp. Ord., Feb. 26, 1996, slip op. at 2. Similarly, in Decision and Remand
Order in this matter, the Secretary stated that "[i]nterest does not accrue on the
compensatory damages award." See Dec. and Remand Order, slip op. at 25
(citingLederhaus v. Donald Paschen, Case No. 91-ERA-13, Sec. Dec. and
Remand Ord., Oct. 26, 1992, slip op. at 16, and McCuiston v. Tennesee Valley
Authority, Case No. 89-ERA-6, Sec. Dec. and Ord., Nov. 13, 1991, slip op. at 24).
The Secretary has also expressed an unwillingness to award interest on
attorney's fees. In Jenkins v. U.S. Environmental Protection Agency, Case No. 92-CAA-6, Sec. Dec. and Ord., Dec, 7, 1994, the Secretary refused to award interest on attorney's
fees because the applicable whistleblower statute does not provide for such awards against a
government respondent. Id., slip op. at 2-3. Indeed, in the numerous cases brought
against private employers pursuant to the ERA, awards of prejudgment interest on attorney's fees
are not applied to private employers, although an award of interest is applied to back pay
damages. See, e.g., Nichols v. Bechtel Construction, Inc., Case No. 87-ERA-0044,
Sec. Dec. and Ord., Nov. 18, 1993, slip op. Blackburn v. Metric Constructor's, Inc.,
Case No. 86-ERA-4, Sec. Dec. (Dec. and Ord. on Atty.'s Fees and Damages), Oct. 30, 1991, slip
op. at 16.
The Respondents are correct in asserting that interest is appropriate only on
awards of back pay. The Secretary, in discussing interest on back pay, has stated:
The fact that the ERA does not expressly provide for interest on back pay
does not preclude it. Back pay awards are designed to make "whole" the employee
who has suffered economics loss as the result of the employer's illegal discrimination. The
assessment of prejudgment interest is necessary to achieve this end. . . . In accordance with this
policy, prejudgement interest on back pay awards has been assessed in cases arising under the
ERA.
Blackburn v. Metric Constructor's Inc., 89-ERA-23, at p. 11-12 (Sec'y 10/30/91);
see alsoAtrip v. Ebasco Serv., Inc., 89-ERA-23, at p. 6 (ARB 9/27/96).
Prejudgement interest on back wages recovered in litigation before the Department of Labor is
calculated, in accordance with 29 C.F.R. § 20.58(a), at the rate specified in the Internal
Revenue Code, 26 U.S.C. § 6621.
The Respondents further argue that the ERA does not authorize
interest on costs, compensatory damages, or attorney fees. It is now well-settled that:
[Page 35]
Complainant is entitled to pre-judgement interest on his back pay award,
calculated in accordance with 26 U.S.C. § 6621. Complainant is not entitled to interest on
his attorney fee award, Blackburn v. Metric Construction, Inc., 86-ERA-4 (Sec'y
10/30/91), at p. 12-13, aff'd sub nom., Blackburn v. Martin, 982 F.2d 125
(4th Cir. 1992), nor does interest accrue on the compensatory damage award. Creekmore v.
ABB Power Sys. Energy Services, Inc., 93-ERA-24 (Dep. Sec'y 2/14/96)at p.
25 (citing Lederhaus v. Paschen, 91-ERA-13 (Sec'y 10/26/92), at p. 16;
McCuistion v. Tennessee Valley Auth., 89-ERA-6 (Sec'y 11/13/91)).
Regarding the issue of interest on costs, the Respondents correctly rely
upon the Secretary's decision in Johnson v. Bechtel Construction Co., 95-ERA-0011
(Sec'y 2/26/96), which expressly states, "[T]he ERA does not authorize interest on
costs." Id. at p. 2.
CONCLUSION
In view of the foregoing, Complainant is entitled to the following awards
pursuant to my mandate herein:
TYPE AMOUNT
BACK WAGES $14,323.30
(9/27/92 to 3/95)
LOST VACATION $ 7,820.33
(9/92 to 3/95
LOST PENSION $19,354.19
(9/27/92 to 4/94)(CX 83)
RELOCATION COSTS $30,198.00
(CX 80)
HEALTH INSURANCE $ZERO
AND MEDICAL EXPENSES
ATTENDANCE AT HEARING, $ 5,299.16
LODGING AND MEALS
(CX 84)
ATTORNEY'S FEE $13,606.20
[Page 36]
Complainant seeks an additional amount as increased compensatory
damages "to compensate Creekmore for the emotional and physical harm he has
suffered."
I agree with Complainant that an additional award of such damages is
reasonable, necessary and appropriate herein, especially as this matter has been pending since
September 25, 1992, the date of the illegal termination. In my R.D.O. I awarded Complainant
the amount of $40,000.00 as compensatory damages and that award was approved by the Deputy
Secretary and the ARB. That award now constitutes the Law of the Case and the ARB's mandate
to me does not include that issue. However, upon further review by the ARB and if it should be
determined that the issue is still open, as the FINAL ORDER has not yet been issued,
I find and conclude that Complainant is entitled to the additional amount of $60,000.00 "to
compensate (Complainant) for the emotional and physical harm he has suffered" since
September 27, 1992 because of the treatment he has received from the Respondents.
ORDER
It is therefore ORDERED that the Respondents joined herein
shall pay to Calvin Creekmore ("Complainant") the following amounts:
1. Back Wages from September 25, 1992 through March 24, 1995 in the amount of
$14,323.30. Interest shall be paid on this amount from September 27, 1992
through the date of payment thereof at the rate specified in the Internal Revenue
Code, 26 U.S.C. § 6621.
2. Lost Vacation benefits in the amount of $7,820.33 for the time period September
27, 1992 through March of 1995.
3. Lost Pension benefits from September 27, 1992 to April of 1994 in the amount of
$19,354.19.
4. Relocation expenses in the amount of $30,198.00.
5. Reimburseable Costs for attending the hearing, lodging and meals by
Complainant and Randy Cross in the amount of $5,299.16.
Respondents shall be entitled to a mitigation offset credit of $32,978.00 representing (1)
Complainant's interim earnings from National Inspection between September of 1992 and May
of 1993 and (2) the severance payments received by Complainant from the Respondents.
Respondents shall also pay to Complainant's attorney, Robert W. Heagney, the fee amount of
$13,606.20 representing a reasonable fee for the excellent legal services rendered on
[Page 37]
Complainant's behalf between April 23, 1996 and February 12, 1997. Attorney Heagney shall
file, within thirty (30) days of receipt of this decision, a supplemental fee petition relating to the
legal services and litigation expenses incurred after February 12, 1997. A copy thereof shall be
filed with Respondents' attorneys who shall have fourteen (14) days to comment thereon.
DAVID
W. DI NARDI
Administrative
Law Judge
Boston, Massachusetts
DWD:ln
[ENDNOTES]
1The then Secretary of Labor had
recused himself in this proceeding.
2It should be noted that the
Deputy Secretary found that PSESI's decision to get out of the QA/QC business and lay off staff
was proper and not motivated by any animus toward Mr. Creekmore. "I disagree with the
ALJ to the extent he questioned PSESI's need to reduce the QA/QC staff." p. 12, n.6.
Accordingly, if the remaining QA/QC business did not warrant a full time position as was the
case, Mr. Creekmore has no damages as he would have been laid off, according to Respondents.
3Additionally, after PSESI moved
to Florida, Mr. Newholm's duties ("100%") were related to the relocation and related
computer activities. (Tr. 1626-1627) By his own admission, Mr. Creekmore had virtually no
computer skills and, accordingly, could not have performed Mr. Newholm's duties. (Tr. 1498)
4While Mr. Creekmore claimed,
without any first hand knowledge, that he could have performed Mr. Taylor's duties at PSESI,
Mr. Amt's testimony clearly indicated that Mr. Creekmore was not qualified to do so. (Tr. 1632-1635) (CX 10) Additionally, Mr. Taylor's job in nuclear security is not substantially similar to
Mr. Creekmore's old QA/QC job.
5In the course of the hearing the
ALJ referenced the possible application of the Administrative Review Board's decision regarding
reinstatement and front pay in Michaud v. BSP Transport, ARB Case No. 96-198
(January 1, 1997) to the instant matter. (Tr. 1580) Since Mr. Creekmore's old position or a
substantially similar position does not exist at PSESI, there is no need to apply
Michaud.
6Salary adjustments are as of
January 1st of each year.
7Regular pay to September 27,
1992, severance ($20,074.18, CX-10, of $44,450) from September 28, 1992 through December
31, 1992.
8Severance for January 1, 1993
through May 28, 1993 = $24,361.00 (CX-10).
9Sum includes $450.00 per month
automobile allowance - total $5,400.00; Actual deduction for automobile = $4,171.00.
10$5,400.00 auto allowance -
actual auto deduction of $3,653.00 ($64,963.12).
1110% raise exists in lost wage
calculation and equaled $7,181.00.
12After that time, PSESI
maintained a voluntary 401(k) program with no employer contribution component. Mr.
Creekmore did not participate in this plan.
13The Complainant offered in
evidence the report of Mr. Goddard, which was marked as an exhibit for Complainant. Mr.
Goddard, who was on the Complainant's witness list for the hearing, was supposed to be deposed
after the hearing. Complainant's counsel was to arrange Mr. Goddard's deposition with the
specific provision that Respondents' counsel could cross-examine Mr. Goddard on his report.
(Tr. 1602-1605, 1709). The deadline established for depositions was August 15, 1997.
Complainant's counsel, apparently, elected not to arrange for Mr. Goddard's deposition.
Accordingly, CX 86 is not admitted into evidence and will not be used by this ALJ in this
proceeding.
14This figure uses Mr.
Chalfant's layoff date of March 24, 1995.
15Mr. Creekmore is not entitled
to have his heart related medical expenses paid irrespective of whether or not he would have had
them covered if he had stayed with PSESI. The Deputy Secretary did not accept this ALJ's
conclusion that his heart attack was the "natural sequella" of his layoff. (p. 24)
16I still believe my September
19, 1994 Recommended Decision and Order is correct but as my mandate from the
Deputy Secretary of Labor and the ARB constitutes the "Law of the Case," such
mandate can be changed only the ARB or by the Court of Appeals for the Second Circuit, in
whose jurisdiction this claim arises.
1710% raise exists in lost wage
calculation and equaled $7,181.00.
