Date: May 16, 1995
Case No. 94-ERA-9
In the Matter of
MAGED GABALLA
Complainant
v.
THE ATLANTIC GROUP, INC.
Respondent
David K. Colapinto, Esquire
For Complainant
William W. Nexsen, Esquire
For Respondent
Before: STUART A. LEVIN, Administrative Law Judge
RECOMMENDED DECISION AND ORDER
This proceeding arises under the Energy Reorganization
Act of 1974, as amended, 42 U.S.C. .§ 5851 ("EPA" or "Act")
and the regulations promulgated and published at 29 C.F.R. Part
24 to implement the Act. On January 6, 1994, Maged Gaballa
("Complainant") filed a complaint with the Department of Labor
alleging that he was discriminated against and blacklisted by The
Atlantic Group, Inc. ("TAG" or "Employer"), the contractor for
Arizona Public Service ("APS") where Complainant was working as
an engineer.
Following an investigation, the District Director,
Employment Standards Administration, U.S. Department of Labor,
determined that Gaballa's allegations could not be substantiated.
On February 15, 1994, Complainant requested a formal hearing,
which convened in Washington, D.C. on June 13 and 14, 1994.
At the hearing, the parties were afforded a full opportunity
to present evidence and argument.[1] The findings and
conclusions which follow are based upon my observation of the
appearance and demeanor of the witnesses who testified at the
hearing, and upon
[PAGE 2]
an analysis of the entire record in light of the arguments
presented, the regulations, statutory provisions, and applicable
case law.
Findings of Fact
1. TAG is a contract labor supply company for commercial
nuclear facilities and supplied contract labor to APS in 1993 (TR
37).[2]
2. Complainant holds a Bachelor's Degree in electrical
engineering and has worked in the nuclear power industry for
approximately fourteen years (TR 157; CX 10, 11).
3. On March 15, 1993, TAG hired Gaballa to work for APS as
an engineer at the Palo Verde Nuclear Generating Station for
$23.50 per hour (CX 3, 11; TR 164, 349). Complainant's
employment with TAG at Palo Verde ended on December 30, 1993 (CX
3), and he subsequently began employment with Carolina Power and
Light ("CP&L") as a senior engineer on April 4, 1994, where he
was working at the time of the hearing (TR 156, 186, 289-91).
4. TAG has offices around the country, but its main office
is located in Norfolk, Virginia. Ellen Taylor is TAG's Personnel
Manager, and she works at the Norfolk office (TR 37). Site
Managers are located at the field offices. Taylor issues TAG's
Policy and Procedure Manual to new employees when they visit the
Norfolk office (TR 69). She keeps a log that employees sign to
acknowledge receipt of the manual (TR 384; TAGX 14). The Policy
and Procedure Manual contains TAG's employee privacy policy
regarding reference requests (TR 54, 55, 72).
5. TAG's employee reference policy mandates that all
questions be referred to the Personnel Department in Norfolk,
Virginia (TR 54, 55; CX 2). The only information divulged
without a written release from the employee is employment dates,
job title, and job site. If a written release is provided, TAG
can give information concerning that employee's rehireability,
reason for leaving, and evaluations (TR 396). Site Managers are
not authorized to make comments on present or past employees.
Ms. Taylor is aware that this policy is often disregarded in
field offices (TR 392, 393).
6. Vance Pettus is TAG's Site Manager at the Palo Verde
office and has administrative responsibilities over TAG's
employees at APS (TR 46, 78, 79, 166, 346). He was Gaballa's
supervisor at Palo Verde. TAG employees at Palo Verde also
[PAGE 3]
reported to APS supervisors, and Gaballa's APS supervisor was
Dave Medek (TR 168).
7. Mr. Pettus was never issued a TAG Policy and Procedure
Manual because he never had to report to the Norfolk office where
they are disbursed (TR 55, 56, 144, 389). His name does not
appear in the log kept by Ms. Taylor (TR 389; TAGX 14). It has
not been established that he had knowledge of TAG's official
employee reference policy (TR 56, 57, 144). Mr. Pettus's general
practice regarding reference calls was to be truthful and to
refrain from imparting personal or confidential information (TR
153, 154, 345, 374).
8. In June 1993, Complainant raised a safety issue
regarding a discrepancy in information provided by the
distributor and the manufacturer concerning the material used in
producing a large grommet used in an Atmospheric Dump Valve
"ADV") (TR 167; TAGX 11). The distributor reported that the
grommet was made of a viton material, while the manufacturer
claimed it was made of black rubber. Claimant expressed the
concern that if the grommet were to fail or melt, it could render
the ADV inoperable during a nuclear emergency (TR 318, 319).
9. After Gaballa raised the safety concern, he reported to
APS Human Resources and Vance Pettus that he felt he was the
target of retaliation because he had raised a safety issue (TR
87-89, 135, 170; TAGX 33). Complainant also advised Pettus that
APS had commenced an investigation of these allegations through
its Employee Concerns Program (TR 170). TAG supervisors knew
that if an employee went to Employee Concerns, that action
constituted protected whistleblower activity (TR 47, 89, 90).
10. On August 19, 1993, Gaballa mentioned to Pettus that he
was considering commencing a legal action because of the
harassment and discrimination to which he felt he was being
subjected. Pettus replied that if Complainant was threatening
him, he would take immediate disciplinary action (TR 86, 175,
299; TAGX 33).
11. Gaballa employed Documented Reference Check ("DRC") in
September of 1993 to contact TAG and APS supervisors to determine
what type of information they would give to third parties about
Complainant (TR 176-178; CX 12). Mike Rankin of DRC contacted
Vance Pettus on October 6, 1993 (CX 6), asking for a reference on
Maged Gaballa. Mr. Pettus could not specifically recall, but did
not deny, that he told Rankin, whom he believed to be a
prospective employer (TR 110; CX 5, 6), that Gaballa had had some
[PAGE 4]
internal problems with the people for whom he was working; that
he had had a problem with tardiness, for which a note had been
placed in his file, but which seemed to have been resolved; that
Complainant was productive and his work was average; and that
Complainant had felt discriminated against even though there had
been no discrimination (CX 6; TR 129-132). There had, in fact,
been no note placed in Gaballa's file concerning his tardiness
(TR 131), and APS had not, at the time of the inquiry, concluded
its investigations into Gaballa's complaints of discrimination
(TAGX 11). Having carefully considered Mr. Rankin's deposition
testimony and Mr. Pettus' testimony, I find Mr. Rankin's report
concerning the circumstances and content of his conversation with
Pettus both reliable and credible.
12. The supervisors from APS that were contacted by DRC
refused to provide Rankin with any information about Complainant
and referred him to Pettus (CX 7).
13. DRC transmitted the references only to Complainant
(Rankin Dep. 25). Pettus did not provide a reference on Gaballa
to anyone other than DRC (TR 363, 377).
14. Pettus testified that he would not normally divulge
information about an employee's lateness or discrimination claims
because that is personal and confidential material (TR 154). He
also acknowledged that telling a prospective employer that an
employee felt discriminated against' would not be positive
information (TR 132). The reference concerning Gaballa which
Pettus provided to DRC violated TAG's employee privacy policy (TR
58; CX 2).
15. When Complainant learned of this negative reference, he
felt frightened, humiliated, and thought it would have an adverse
affect on his career because positive references are an important
factor in securing employment in the nuclear power industry (TR
186-188) . Obtaining a security clearance, or "unescorted
access," is essential.for engineering positions at nuclear power
sites (TR 40, 42, 165, 166, 186-188).
16. Beginning during the summer of 1993, after Gaballa had
raised the grommet issue, he began to experience anxiety and
shortness of breath (TAGX 11) . These symptoms, combined with
previous heart trouble, led him to visit a cardiologist, Dr. S.
Leshin. Dr. Leshin told him that his troubles were due to stress
and were more mental than physical (TR 188, 224, 225; CX 20).
17. Complainant later visited a psychologist, Dr. Edwin
[PAGE 5]
Carter, for treatment of continuing emotional troubles (TR 189,
206, 207). Dr. Carter has extensive experience in psychological
testing, teaches collegiate courses, and engages in private
practice (TR 202).
18. Gaballa's stress symptoms did not abate after he
changed jobs (TR 189). Complainant continued to suffer from
nightmares, lack of sleep, mood swings, and irritability. He
lost interest in his hobbies and sex (TR 190, 211). After
administering traditional psychological tests (TR 209; CX 17-22)
and interviewing Gaballa (TR 208, 209, 213), Dr. Carter
determined that the negative reference provided by Mr. Pettus and
obtained by DRC precipitated Gaballa's depression, marital
problems, and paranoid thinking, which are commonly engendered by
chronic stress (TR 207-209, 233, 237-242, 253, 259, 260, 264).
Dr. Carter testified that Claimant was in a state called
"anhedonia," which is characterized by a diminished drive and a
diminished ability to enjoy activities, including sexual
activities (TR 212).
19. Dr. Carter concluded that the psychological impact of
the reference continued to affect Gaballa in his current job and
personal life; he had lost confidence in his engineering Judgment
and was afraid to speak up at work (TR 212, 213) . He had
developed a general distrust of others, and his ability to relate
to other people had suffered (TR 211, 213, 233, 261, 266, 268).
Dr. Carter related that, based on the negative reference he
received, Complainant still worried that this derogatory
information would follow him (TR 232). Furthermore, Dr. Carter
felt that due to his relationship with TAG, Complainant had
suffered the development of a full-blown personality disorder
which will persist forever, especially in regard to his distrust
of authority figures and, to a lesser degree, his relationship
with his family (TR 235, 236). Dr. Carter emphasized the
importance of the reference in causing Gaballa's emotional state
because it had a psychological impact on his reputation and his
ability to pursue employment elsewhere (TR 258, 259).
20. Based on his interviews and independent verifications,
Dr. Carter believed that Gaballa was not malingering and that he
was presenting a truthful version of events and symptoms (TR 210-
212, 228-230).
21. Gaballa is eligible for rehire by TAG (TR 394; CX 3),
and he requested in October of 1993 that his resume be placed in
TAG's computer system so that if any additional employment
opportunities arose, he could be identified and notified (TR
322). He was not, however, entered into the computer system
[PAGE 6]
until January 24, 1994, after TAG became aware that he had
instituted this action (TR 397, 408, 409).
22. Complainant began looking for new employment
opportunities after his release from APS (TR 301, 302; CX 12) .
In January 1994, he was informed by a friend that CP&L was
seeking engineers. He applied and was offered a job on March 24,
1994, and he began working for CP&L on April 4, 1994 at a monthly
salary of $4,741 (TR 186, 289-291; CX 15).
23. Complainant and APS have entered into a settlement of
the claims arising from APS's alleged discriminatory actions.
The only remaining claim concerns the alleged blacklisting and
discrimination of Gaballa by TAG (Order, June 15, 1994).
Discussion
The Energy Reorganization Act of 1974, as amended, provides
in pertinent part that:
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 engaged in specified
protected activity.
42 U.S.C. § 5851(a).
To establish a prima facie case of discrimination under
the ERA, a complainant must prove by a preponderance of the
evidence that:
(1) the party charged with discrimination is an "employer"
under the Act;
(2) the complainant is an "employee" under the Act;
(3) the complainant was discharged or otherwise
discriminated against with respect to his compensation, terms,
conditions, or privileges of employment;
(4) the complainant engaged in protected activity[3] ;
(5) the employer knew or had knowledge that the complainant
had engaged in protected activity; and
[PAGE 7]
(6) the retaliation against the complainant was motivated,
at least in part, by the complainant's engaging in protected
activity.
42 U.S.C. § 5851(b)(3)(C). See Mackowiak v. University
NuclearSystems, Inc., 735 F.2d 1159, 1162 (9th Cir.
1984) ; DeFord v Secretary of Labor, 700 F.2d 281,
286 (6th Cir. 1983).
Once the complainant has established this prima facie
case, the burden shifts to the employer to prove with clear and
convincing evidence that the same action would have been taken
even in the absence of the complainant's protected activity. 42
U.S.C. §5851(b)(3)(D).
I. Prima Facie Case
A. Employer/Employee
The parties do not contest and, in fact, have stipulated
that TAG is an employer and that Complainant is an employee under
the Act (TR 19, 20). Thus, the first two elements of a
whistleblower claim are established and need no further
elaboration.
B. Discrimination Against Complainant
Discriminatory acts under the ERA are defined broadly and
include the act of blacklisting or circulating negative comments
about an employee.[4] SeeDoyle v. Hydro Nuclear
Serv., 89-ERA-22, n.2 (Sec'y March 30, 1994). In addition,
29 C.F.R. section 24.2 (b) provides that there is a violation of
the Act if any person "blacklists" an employee because he engaged
in protected activity.[5] In fact, Employer concedes that the
alleged adverse action of blacklisting would be cognizable if
Employer had made this reference to an actual prospective
employer instead of DRC,, an agent of Complainant (Respondent's
Brief 14).
To be sure, the act of advising a prospective employer that
an employee or former employee had filed discrimination charges
has been considered retaliation and a violation of Title VII.
Rutherford v. American Bank of Commerce, 565 F.2d 1162
(10th Cir. 1977). One court has noted that discriminatory
treatment in employment references implicates an employee's
"'conditions', of past employment as well as 'privileges' of
[prospective] employment." Shehadeh v. Chesapeake & Potomac
Telephone Co., 595 F.2d 711, 722 n.50 (D.C. Cir. 1978)
(applying Title VII). Thus, informing a prospective employer of
an employee's protected
[PAGE 8]
activity would qualify as adverse employment action.
TAG asserts that its acts could not be discriminatory
because the reference was not given to an actual prospective
employer, and thus, Complainant suffered no damage or loss of
employment opportunity. This argument, however, is without
merit, and as Employer concedes, it is also not supported by
precedent (Respondent Is Brief 15) The court in Cohen v. SUPA,
Inc., 814 F. Supp. 251, 260-61 (N.D.N.Y. 1993) (applying
Title VII), rejected this contention, holding that the act of
retaliation need only have an adverse impact on the complainant
to be actionable, and that an actual loss of prospective
employment does not necessarily need to be demonstrated. This
proposition is also supported by the availability of compensatory
damages under the Act, which can be awarded solely for emotional
distress. 42 U.S.C. §5851(b)(2)(A).
Furthermore, the Secretary of Labor addressed this issue in
Earwood v. Dart Container Corp., 93-STA-16 (Sec'y Dec. 7,
1994). Carey Earwood, the complainant, enlisted another
individual to contact his former employer on the pretext of
obtaining a reference for possible employment. This person was
not actually a prospective employer of Earwood, but was acting on
behalf of the complainant. In responding to the request, a Dart
employee revealed that Earwood had filed charges against it, and
that Dart was displeased. The Secretary ruled that this was
impermissible blacklisting and constituted a violation of the
Surface Transportation Assistance Act. In addition, he noted
that the Dart employee was unaware that the request was not a
legitimate inquiry. Consequently, the fact that the complainant
did not lose an actual employment opportunity did not shield Dart
from liability. The Secretary found that "effective enforcement
of the Act requires a prophylactic rule prohibiting improper
references to an employee's protected activity whether or not the
employee has suffered damages or loss of employment opportunities
as a result." Id. at 5.
Moreover, the Dart rationale is readily extended to
the ERA. As the Secretary noted, the prohibition against
blacklisting is equally applicable to similar employee protection
statutes. Id. at 2 (citing Garn v. Benchmark
Technologies, 88-ERA-21 (Sec'y Sept. 25, 1990)). Thus, DRC's
status as an agent of Complainant is inconsequential, and
Employer's actions here are adverse and actionable.
Complainant was clearly subjected to discrimination by TAG
when his TAG assigned supervisor, Mr. Pettus, violated TAG policy
[PAGE 9]
and advised the reference caller that Gaballa had felt as if he,
had suffered discrimination. Even though Pettus may not have
been actually aware of TAG's policy regarding referral of
reference requests, this does not absolve him or TAG of its
violation. As a Site Manager of Palo Verde, Pettus was acting
within the scope of his employment when he gave the reference to
DRC; he is a TAG supervisor, and as such, his acts are those of
the company. Equally important, whether or not Mr. Pettus was
aware of company policy, he admittedly ignored his own policy of
not revealing personal and confidential information. Providing
references is a term or condition of employment, and therefore,
the negative reference was an adverse employment action to which
employees who did not engage in protected activities were not
subjected.
C. Protected Activity
Complainant engaged in protected activity when he reported
his safety concerns regarding the grommet. There was a
discrepancy between the supplier and the manufacturer as to the
composition of the grommet, and such a conflict is required to be
reported to the Nuclear Regulatory Commission. 10 C.F.R. 50, Part
21. Complainant's act of advising his supervisors of this
potential problem constituted protected activity; raising health
and safety complaints internally to supervisors is protected
activity. Adams v. Coastal Production Operators, Inc.,
89-ERA-3 (Sec'y Feb. 14, 1989). Specifically, section
5851(a)(1)(A) protects employees who inform their supervisors of
a possible violation of the Act. Clearly, Gaballa engaged in
protected activity.
D. Employer Aware of Protected Activity
Complainant avers that after he notified his superiors of
the conflict concerning the grommet, he became subject to
discrimination and harassment. He reported both his safety
concerns and his feelings of discrimination to APS Human
Resources and Employee Concerns Program. TAG was also cognizant
of Gaballa's complaints and the related investigation. Both
Pettus and Taylor were aware of his complaints, and this element
is not contested.
E. Discrimination Motivated by Protected Activity
Section 5851(b)(3)(C) provides that a violation of the Act has
occurred if the complainant demonstrates that his protected
activity was a contributing factor in the employer's
[PAGE 10]
discrimination. Here, the nexus between the adverse action and
the protected activity is fairly direct; Gaballa's protected
activity was the internal reporting of a possible safety
violation in June of 1993, and the adverse action, or negative
reference in October, 1993, was based on his complaints of
discrimination due to his protected activity. Mr. Pettus
explicitly told DRC that Complainant felt discriminated against
even though he had not been, and Pettus made this remark despite
the on-going investigation of Gaballa's complaint. Indeed, Mr.
Pettus' discussion of Gaballa's concerns about discriminatory
treatment, and indeed his willingness to provide an adverse
reference at all are evidence of retaliatory action against
protected activity in the context of this record.
Thus, in Dart, supra, the Secretary found that
the employer acted out of a discriminatory motive when it
provided information about the complainant's previous complaint
and that these remarks constituted direct evidence of a
retaliatory motive. Id. at 3. Likewise, Mr. Pettus' negative
reference to DRC concerning Complainant's attendance and
discrimination claims are equally demonstrative of a
discriminatory purpose. Mr. Pettus admittedly departed from his
own practice when he gave Gaballa a negative reference, and there
is no showing that other employees who had not engaged in
protected activity were treated in this fashion.
In addition, Mr. Pettus had previously demonstrated his
displeasure with Gaballa's protected activities when he
threatened to initiate immediate disciplinary action if Gaballa
took legal action against the alleged discrimination. (Tr. 357-
58). A manager's comments may be direct evidence of a
discriminatory motive. Lederhaus v. Paschen, 91-ERA-13
(Sec'y Oct. 22, 1992). Although the filing of a complaint in
this context would constitute protected activity, Mr. Pettus
seemed undeterred in threatening to take adverse action against
an employee who was engaging in, or was about to engage in,
protected activity. 42 U.S.C. § 5851(a) (1) (D) . The
negative reference to DRC was, I find, in furtherance, at least
in part, of this retaliatory inclination.
II. Rebuttal/Adverse Action Regardless of Protected
Activity
The elements of a prima facie case of discriminatory
retaliation having thus been established, Employer must now show
with clear and convincing evidence that it would have taken,,the
same adverse action in the absence of the protected conduct. 42
U.S.C. § 5851(b)(3)(D). For the reasons discussed below, I
find the rationale proffered by Employer inadequate to
demonstrate that it
[PAGE 11]
had a legitimate or nondiscriminatory reason for the negative
reference.
First, Employer argues that TAG was not involved in
Complainant's protected activity, and it had no incentive to
discriminate "against him (Respondent's Brief 24). TAG was
Claimant's employer and was ultimately responsible for placing
Complainant at Palo Verde. If Gaballa's protected activity
created an unwelcome problem for APS, it would not strain
credulity to infer that it also created an unwelcome problem for
TAG. APS is an important TAG contractor. Nevertheless, the Act
does not require us to place an economic value on the TAG/APS
relationship or weigh an employer's incentives for a particular
action it takes against the value to TAG of a single engineer.
The existence of discrimination, perforce, assumes its own
incentives.
Second, TAG contends that Pettus treated Complainant no
differently than any other employee for whom he provided a
reference. This contention, however, is not supported by Mr.
Pettus' own testimony. Mr. Pettus normally refrained from
revealing personal or confidential material, and he did consider
the information concerning Gaballa's lateness and discrimination
complaints to be personal. His communication of such information
to Mr. Rankin of DRC was not consistent with his treatment of
other employees.
Next, Employer cites Womack v. Munson, 619 F.2d 1292,
1296 (8th Cir. 1980) (applying Title VII) for the proposition
that an employer need only establish a legitimate reason for the
adverse action to dispel the inference of discrimination. In
Womack, the question was whether the basis for the
discharge was sufficiently independent of the protected activity.
In this case, the negative reference is not sufficiently
independent of Complainant's allegations, or protected activity,
to rebut the inference. To the contrary, the negative reference
was based mainly on Complainant's protected conduct. As such,
the facts here do not lend themselves to a reasonable conclusion
that the negative reference was independent of the protected
activity.
TAG argues further that Pettus did not misrepresent any
facts, and therefore, no blacklisting claim can arise. This
contention, however, is without merit. In his conversation with
Rankin, Mr. Pettus was not entirely candid. First, Pettus stated
that Complainant had a note in his file, or a written warning,
regarding his few occasions of tardiness. There was, in fact, no
such note in Gaballa's file and his suggestion to the contrary
[PAGE 12]
had a tendency and capacity to overstate the problem. Second,
after relating that Gaballa considered himself the target of
discrimination, Pettus went further and reported that there had
not actually been any discrimination against him. While that may
have been Mr. Pettus' opinion, his failure to mention the further
material fact that APS Employee Concerns had not yet concluded
its investigation of the matter and had reached no conclusions at
the time had a tendency to mislead a potential employer into a
mistaken belief that Gaballa was a meritless complainer. Thus,
Pettus' reference was not only contrary to general TAG policy and
his own practice, but it was also not free from misleading
content.[6] Under such circumstances, I find I am unable to
conclude that the release of the negative information constituted
either an inadvertent error or a non-retaliatory action. I
believe Mr. Pettus knew precisely what he was doing.
Employer's equity argument that Complainant has unclean
hands, because he created the setting for the negative reference,
is also lacking in merit. The Secretary has expressly ruled that
adverse information conveyed to a source such as DRC, under
similar circumstances, may be offered in support of charge of a
discrimination. See, Dart, supra.
TAG has not demonstrated that it would have taken the same
adverse action in the absence of Gaballa's protected activity.
Indeed, Complainant's concern about discrimination arising due to
his protected activity was part of the content of the negative
reference, (See Id. at 1297-98). Moreover, the fact that
Gaballa was concerned about discriminatory retaliation as a
result of his protected activity was not only mentioned, but
characterized as baseless by Pettus in his DRC interview. Under
such circumstances, the record fails to show that a negative
reference would have been communicated regardless of
Complainant's whistleblowing activity.
III. Damages/Relief
Complainant requests compensatory damages to compensate him
for the emotional distress he has suffered as a result of TAG's
negative reference, as well as for the damage to his reputation.
He also seeks lost wages and benefits for the time period between
his last employment with TAG at APS and his current employment.
In addition, Complainant seeks to enjoin Employer from releasing
any personal information about Complainant without a written
release, and requests an order requiring TAG to expunge from his
file ' all references to his engaging in protected activity and
to the related allegations raised by TAG or APS.
[PAGE 13]
Upon the evidence adduced in this record, I find no basis
for awarding Mr. Gaballa compensatory damages due to injury to
his reputation. The negative reference was given to DRC, who in
turn gave it only to Complainant. Although the negative
reference may have constituted an attempt to diminish Claimant's
employment potential, there is no evidence to suggest that any
prospective employers received it, and Complainant has failed to
demonstrate that he suffered any actual damage or injury to his
reputation.
Complainant also requests an award for lost wages and
benefits for the time period between January 1, 1994, when he was
released by TAG, and April 4, 1994, when he commenced work with
CP&L. The predicate for such damages has also not been
established. There is no evidence to connect his discharge from
TAG to the discrimination claim. Gaballa left TAG when his
contract expired, and he has not raised the issue that this was a
retaliatory discharge. There is, moreover, no evidence to
suggest that TAG prevented Complainant in any way from obtaining
employment during this time period. Complainant secured his job
at CP&L in the same manner in which he was hired by TAG, through
notification by a friend that work was available. TAG is,
therefore, not liable for the payment of lost wages or benefits.
Complainant also seeks compensatory damages for emotional
distress, and it is well settled that damages are available under
the Act and the regulations. 42 U.S.C. §5851(b)(2)(A); 29
C.F.R. §24.6(b)(2); DeVord v. Secretary of Labor, 700
F.2d 281, 283 (6th Cir. 1983). In this instance, Dr. Edwin
Carter testified at length regarding Complainant's emotional
problems caused by the negative information which emanated from
his TAG supervisor. He examined Gaballa and administered
credible diagnostic tests. In Dr. Carter's opinion, Gaballa's
complaints and his symptoms are real. As a consequence of the
negative reference, Dr. Carter believes Complainant suffered
chronic stress, paranoid thinking, a general distrust of others,
a lack of confidence in his engineering judgment, a fear of
continual repercussions,[7] and a general feeling of apathy,
which created problems in his relationship with others, including
family members.
Dr. Carter testified, without contradiction by any other
expert opinion in this record, that, as a result of TAG's
actions, Gaballa has developed a "full-blown" personality
disorder which will "persist forever." His trust in authority
figures has been, according to Dr. Carter, "affected forever,"
and a "permanent" strain has been placed on his marital
[PAGE 14]
relationship. (Tr. 235-36). Again, Dr. Carter attributed these
disorders to TAG'S actions, not to APS. (Tr. 235-36).
In Marcus v. EPA, 92-TSC-5 (ALJ D & 0, 12/3/92) an
award of $50,000 compensatory damages, in addition to backwages
and other relief, was entered upon evidence of "mental and
physical anguish" suffered by the complainant in that case. A
review of that decision demonstrates that the anguish adduced in
that record was predicated solely upon the complainant's
testimony. No medically determined permanent affect was
demonstrated. On appeal, the award of compensatory damage was
specifically affirmed by the Secretary. Marcus v. EPA,
(Decision of Secretary, 2/7/94 at pg. 10).
In this instance, the evidence of the injury Complainant
sustained consists not merely of Claimant's own testimony, but
the unrefuted testimony of Dr. Carter. Moreover, unlike the
emotional and physical anguish suffered by Marcus, the evidence
here demonstrates chat Gaballa has developed permanent disorders
due to the discrimination by TAG. Considering past circumstances
in which damages of $50,000 have been sustained, I believe the
evidence here justifies a more substantial award.
Finally, the relief requested by Complainant includes an
order requiring TAG to obtain a written release before disclosing
any personal information on Complainant, and also requiring it to
expunge any references to this claim or related matters from his
employment record. These are reasonable provisions, under the
circumstances, and will be included in the order.
Conclusion
Upon consideration of the record in its entirety, I conclude
the evidence is sufficient to find that The Atlantic Group, Inc.
discriminated against Maged Gaballa with respect to the terms and
conditions of his employment when it provided a negative
reference, at least in part, in retaliation to referring to his
protected activity. Moreover, The Atlantic Group presented
insufficient evidence to demonstrate that the adverse action was
either an inadvertent error or would have been taken in the
absence of the protected activity. Accordingly, Gaballa is
awarded compensatory damages and the requested Orders.
ORDER
It is hereby ORDERED that The Atlantic Group, Inc.:
1. Pay to Maged Gaballa the sum of $75,000 in compensatory
damages for the infliction of emotional distress;
2. Refrain from releasing any information concerning Maged
Gaballa without first obtaining a written release from him; and
3. Expunge from Maged Gaballa's employment records all
references to his engaging in protected activity, his allegations
of discrimination, and any related claims against him while he
was employed at Palo Verde Nucleus Generating Station.
[ENDNOTES]
[1] Although Mr. Gaballa testified at the hearing, and although
the Employer was afforded a full opportunity to cross-examine,
the Employer sought, after dismissing Mr. Gaballa as a witness,
to include portions of his deposition into evidence. Tr. 336-41.
As Mr. Gaballa points out, such use of a deposition would be
questionable under the Federal Rules, however, in the interest of
developing a complete record, and in the absence of any
demonstration of prejudice, the portions of the deposition
submitted post-hearing are admitted into evidence.
[2]
The abbreviation "TR" refers to the transcript from the hearing,
"CX" to Complainant's Exhibit, and "TAGX" to TAG's
Exhibit.
[3]
To have engaged in protected activity under the ERA, an employee
must have done one of the following:
(1) notified his employer of an alleged violation of the ERA or
the Atomic Energy Act of 1954;
(2) refused to engage in any practice made unlawful by the ERA
or the Atomic Energy Act, if the employee has identified the
alleged illegality to the employer;
(3) testified before Congress or at any federal or state
proceeding;
(4) commenced, cause to be commenced, or is about to commence or
cause to be commenced a proceeding under the ERA or the Atomic
Energy Act;
(5) testified or is about to testify in any such proceeding; or
(6) assisted, participated, or is about to assist or participate
in any manner in such a proceeding.
42 U.S.C. §5851(a)(1)(A)-(F).
[4]
Other instances of alleged discrimination against Complainant by
APS or TAG were resolved in a previous settlement agreement, and
are no longer an issue.
[5]
For a definition of blacklisting, see Bilka v. Pepe's
Inc., 601 F. Supp. 1254, 1259 (N.D. Ill. 1985) (giving
negative references to employment agencies and prospective
employers).
[6]
This is not a finding that blacklisting cannot occur if an
employer makes no misrepresentations, only that TAG's claim that
it made no misrepresentations is not supported by the evidence.
[7]
When an employer's action instills a fear in its employees which
discourages the reporting of their safety concerns, it achieves
the precise response which whistleblower laws are designed to
alleviate.
