DATE: February 14, 1996
CASE NO. 93-ERA-24
IN THE MATTER OF
CALVIN J. CREEKMORE,
COMPLAINANT,
v.
ABB POWER SYSTEMS ENERGY SERVICES, INC.,
RESPONDENT.
BEFORE: THE DEPUTY SECRETARY OF LABOR[1]
DECISION AND REMAND ORDER
This case arises under the employee protection provision of
the Energy Reorganization Act of 1974 (ERA), as amended, 42
U.S.C. § 5251 (West 1994).[2] Complainant, Calvin J.
Creekmore, alleges that Respondent, Power Systems Energy
Services, Inc. (PSESI),[3] violated the ERA when it laid him off
from his managerial position. The Administrative Law Judge (ALJ)
found that Respondent violated the Act and ordered PSESI to pay
back pay, front pay in lieu of reinstatement, reimbursement for
certain monetary losses, compensatory damages, costs, and
attorney fees. I agree with the ALJ's conclusion that
Creekmore's layoff violated the ERA, clarify the measure of some
of the damages to which he is entitled, and remand to the ALJ for
a recommendation on the amount of back pay.
BACKGROUND
PSESI is a provider of temporary manpower services to the
power production industry, including nuclear power plants. As
PSESI's Manager of Quality Services, Creekmore provided temporary
personnel in the quality assurance/quality control (QA/QC) field
to nuclear power plants to staff them during shut-down periods.
[PAGE 2]
T. 74-76, 295-296. Creekmore worked in Windsor, Connecticut.
T. 65.
In the latter part of 1991, Creekmore informed ABB's
southern regional client manager, George Griffiths, that he would
like to return to his native region of Tennessee. T. 153.
Creekmore discussed with Griffiths the possibility of ABB
creating for him the position of client manager for the Tennessee
Valley Authority (TVA), which operates several nuclear plants.
Id. When Griffiths asked TVA employee Randy Wood
whether he had
anyone to suggest for such a position, Wood recommended
Creekmore. T. 1272-1273. Griffiths later told Wood that
Creekmore would be the new TVA client manager. T. 1273.
Creekmore and Griffiths discussed a raise in salary upon
Creekmore taking the position, T. 153-154; see also T.
779-780, and Creekmore sought information on the company's
relocation policy. T. 154.
Nuclear Regulatory Commission (NRC) regulations require the
completion of an extensive background investigation prior to
granting personnel unescorted access to a nuclear facility.
T. 92-93. PSESI's security group handled the access screening
program and cleared personnel to receive a "good guy" letter
authorizing unescorted access. T. 92-94.
In preparation for an upcoming outside audit, PSESI's
president, Lionel Banda, assigned Creekmore to oversee an
internal audit of the access screening program in April 1992.
T. 91. Creekmore assigned Jack Mayoros and another employee to
conduct the audit. T. 97-98, 709. After overhearing a
conversation, Mayoros suspected that, contrary to the
regulations, some good guy letters were being sent to client
nuclear plants prior to PSESI receiving all of the necessary
background checks on the employees. T. 710-714.
Creekmore learned about the improperly issued good guy
letters when he returned to the office after a few days' absence.
T. 100-101. The security group's direct manager, Roy Newholm,
admitted to Creekmore that he knew good guy letters had been
issued prior to the completion of the necessary background
investigation. T. 104-105. Indeed, two investigators said they
were instructed to issue the good guy letters first and later
backdate reference checks when the investigations were completed.
T. 107-108, 715; CX 26.
Creekmore gave Banda documents and a memorandum recommending
that PSESI immediately use the correct date on background check
documents, notify a client nuclear plant about the security
program lapses, and conduct an audit to determine the severity of
the problem. CX 27. According to Creekmore, Banda told him to
get rid of the documentation because it was "ammunition," T.
[PAGE 3]
118-119, 121, but Banda denied the incident. T. 536-537.
Outside auditors confirmed Creekmore's conclusions of
serious violations of security regulations. T. 121. Creekmore
reported to Banda and Bill Skibitsky, the president of PSESI's
parent company, that security group supervisors had instructed
investigators to skip certain procedures in verifying background
references. T. 123-125; CX 21. Banda told PSESI staff that when
speaking with client utilities, they should refer to the security
department problems as "omissions and inconsistencies as opposed
to serious violations involving falsifying records." T. 127. At
one point, Banda also told PSESI employees not to communicate
with an NRC investigator because she was close to finding the
"root cause" of the security group problem. T. 146-147.
In view of the security department lapses, PSESI reprimanded
and suspended Newholm and a security group supervisor. T. 599-
600, 802. Mayoros replaced Newholm as Acting Manager of
Security. T. 723; CX 12.
Banda assigned Creekmore to head the verification team,
which reviewed the files, determined whether any temporary
personnel provided through PSESI should be removed from a nuclear
site, and rewrote the procedures to avoid a recurrence of the
problem. T. 546-547. Aware of Creekmore's interest in
transferring to Tennessee, Banda asked him not to leave his job
while he was working on fixing the security department problems.
T. 156, 159, 567. Creekmore was unable to sell QA/QC services
because he spent the summer of 1992 working long hours to remedy
the problems and did not even take a vacation. T. 150, 152;
CX 30. QA/QC sales continued to decline.
That summer, Creekmore found it difficult to contact
Griffiths about the TVA client manager position. T. 161. He
also noticed a coldness in Banda's attitude toward him. T. 161.
Banda informed Creekmore that PSESI was "getting out" of the
QA/QC business and that he was being laid off in September 1992
along with several others in his department. T. 170.
According to Creekmore, Griffiths said that he was shocked
about the layoff and that Creekmore had been made the "fall guy"
for the security problems. T. 204-205; CX 45. Griffiths did not
recall the conversation, however. T. 997. The TVA client
manager position never was authorized.
PSESI folded the QA/QC business into the Engineering and
Training Services division, headed by William Chalfant. T. 446.
According to the company, it no longer actively sold QA/QC
services. T. 459-460. However, after Creekmore's layoff,
Newholm was reinstated and selling QA/QC services was part of his
duties. T. 210-213.
Creekmore received severance pay equal to his full PSESI
salary for approximately nine months following his layoff. T.
[PAGE 4]
501-502; RX 23. He found temporary consulting work that required
him to be away from home for long periods. T. 198. Another ABB
company considered Creekmore for a management opening at the same
pay grade as his former position. T. 201, 701. Creekmore was
unable to leave his consulting job on the suggested day for the
ABB interview, and arranged a later interview date. T. 201, 698.
In the meantime, The Atlantic Group (TAG) offered Creekmore a
permanent position and told him he must accept or reject the
offer by a date prior to the scheduled interview with ABB. T.
202-203. Creekmore accepted TAG's definite offer and informed
ABB that he no longer was a candidate for its position. T. 203,
699.
Creekmore timely filed this ERA complaint. In a Recommended
Decision and Order (R. D. and O.), the ALJ found that PSESI
violated the ERA, recommended certain remedies and damages, and
directed Creekmore to submit additional evidence to clarify
certain elements of damages to which he might be entitled.
See R. D. and O. at 48, 50-51. After receiving responses,
the ALJ issued a Recommended Decision and Order on Motion for
Reconsideration (RDO-MR), recommending payment of additional
damages and attorney's fees.
PRELIMINARY ISSUE
PSESI has asked me to take notice of the NRC's investigative
report concerning Creekmore's complaint that he was laid off for
raising concerns regarding the premature issuance of good guy
letters. Creekmore opposed the motion.
The investigation report is a relevant public document of a
Federal agency and I will take notice of it. See Mosbaugh v.
Georgia Power Co., Case Nos. 91-ERA-1 and 91-ERA-11, Dec. and
Order of Remand, Nov. 20, 1995 (authorizing record to be
supplemented with NRC investigation report concerning the same
complaint). The NRC report shall be placed with the record of
this case. For the reasons discussed below, I disagree with the
conclusion in the NRC report that Creekmore's layoff was not
motivated by his raising concerns regarding the good guy letters.
DISCUSSION
Where a respondent has introduced evidence to rebut a
prima facie case of a violation of the ERA's employee
protection provision, it is unnecessary to examine the question
of whether the complainant established a prima facie case.
Carroll v. Bechtel Power Corp., Case No. 91-ERA-0046,
Final Dec. and Order, Feb. 15, 1995, slip op. at 11 and n.9,
petition for review docketed, No. 95-1729 (8th Cir. Mar.
27, 1995). "The [trier of fact] has before it all the evidence
it needs to determine whether 'the defendant intentionally
discriminated against the plaintiff.'" USPS Bd. of Governors
v. Aikens, 460 U.S. 711, 715 (1983) (quoting Texas Dept.
of Community Affairs v. Burdine, 450
[PAGE 5]
U.S. 248, 253 (1981)).
The relevant question in this case is whether Creekmore
established by a preponderance of the evidence that his protected
activities were a contributing factor in the layoff decision. 42
U.S.C. § 5251(b)(3)(C) (West 1994). Even if Creekmore made
that showing, PSESI still would not be liable under the ERA if it
demonstrated by clear and convincing evidence that it would have
laid off Creekmore in the absence of his protected activities.
42 U.S.C.A. § 5851(b)(3)(D). SeeYule v. Burns
Int'l Security Svc., Case No. 93-ERA-12, Final Dec. and
Order, May 24, 1994, slip op. at 7-8. PSESI also may not be
found liable if Creekmore, "acting without direction from his . .
.
employer . . . deliberately cause[d] a violation of any
requirement of the" ERA. 42 U.S.C.A. § 5251(g).
In reaching the recommended decision, the ALJ viewed the
evidence in the light most favorable to Creekmore. See,
e.g.,
R. D. and O. at 19 ("This closed record, viewed most favorably
toward Complainant and the allegations he has made, leads to the
conclusion that Complainant was discharged because of his
protected activity."). See also R. D. and O. at 20 ("In
concluding that the Complainant has established a violation of
the ERA, I have resolved all doubts in his favor, especially
since the employee protection provision of the Act is a most
important part of the statute. . ."). Since there was a full
hearing with presentation of evidence by both parties, it was not
correct to view the evidence more favorably toward the
complainant.[4] Accordingly, I have examined the evidence
neutrally, without viewing it favorably toward either party.
1. Liability under the ERA
One way for a complainant to establish that his protected
activities were a contributing factor in the adverse employment
action is to show that the reason the respondent gave for taking
the action was pretextual. Yule, slip op. at 6.
Creekmore maintains that Banda told him that PSESI was "getting
out" of the QA/QC business and therefore was laying him off. T.
170-171. Dennis Silver, who was laid off at the same time,
confirmed Banda's use of the term. T. 1096.
Banda, however, testified that he told Creekmore that the
company was "restructuring" the QA/QC business line. T. 566. A
memorandum from Banda to Skibitsky, dated four days after
Creekmore learned about his layoff, explained the proposal to
restructure the QA/QC business. T. 563-564; RX 16.
The ALJ credited Creekmore's testimony that Banda used the
term, getting out of the business. As the ALJ explained, R. D.
and O. at 20, although Banda initially said he did not recall
using the words, "getting out" of the QA/QC business, T. 566, he
later said that the company was "(g)etting out of the -- getting
[PAGE 6]
out of the issues." T. 567. Finally, Banda admitted that he may
have said "getting out of the business" when informing Creekmore
about the layoff, but he had intended to say "restructuring." T.
601-602.
I too credit Creekmore's version that Banda told him that he
was being laid off because the company was getting out of the
business. Banda apparently desired to hide the reality of the
restructuring plan from Creekmore, who had insisted on informing
the client utilities about the security department's failures.
The shift in explanation from quitting the business, told to
Creekmore and Silver, to restructuring, told to PSESI's parent
company, indicates pretext. See Hobby v. Georgia Power
Co., Case No. 90-ERA-30, Dec. and Remand Order, Aug. 4, 1995,
slip op. at 21 (finding no legitimate, nondiscriminatory reason
for a supervisor rating the complainant's performance as
"excellent" and "commendable" and later testifying that he never
had a high opinion of the complainant's skills). See also
Edwards v. United States Postal Svc., 909 F.2d 320, 324 (8th
Cir. 1990) ("[i]n light of this record, filled with changing and
inconsistent explanations, we can find no legitimate,
nondiscriminatory basis for the challenged action that is not
mere pretension.").
I agree with the ALJ that despite protestations to the
contrary, PSESI continued to seek external QA/QC business after
Creekmore's layoff by bidding on contracts with utilities that
were not among its existing QA/QC clients. R. D. and O. at 14-
15; see also T. 210, 212-213, 216-218; CX 57-59. Newholm
acknowledged that PSESI had no obligation to make those bids.
T. 826.
Contrary to PSESI's argument, Resp. Br. at 32-33, I do not
find that the facts of Shusterman v. Ebasco Svcs., Inc.,
Case No. 87-ERA-27, Final Dec. and Order, Jan. 6, 1992, aff'd
mem., Shusterman v. Secretary of Labor, 978 F.2d 707 (2d Cir.
1992), are analogous to this case. In Shusterman, slip
op. at 10, the Secretary found that the four-year hiatus between
the complainant's protected activity and his layoff indicated
that the protected activity did not motivate the layoff. In this
case, however, Creekmore's layoff occurred within five months of
his protected activities, and therefore the inference of
causation was strong.[5] See R. D. and O. at 32;
Couty v. Dole, 886 F.2d 147, 148 (8th Cir. 1989) (temporal
proximity is sufficient to raise inference of causation);
Goldstein v. Ebasco Constructors, Inc., Case No. 86-ERA-
36, Sec Dec., Apr. 7, 1992, slip op. at 11-12, rev'd on other
grounds sub nom. Ebasco Constructors, Inc. v. Martin, No. 92-
ERA-4567 (5th Cir. Feb. 19, 1993) (causation established where
seven or eight months elapsed between protected activity and
adverse action). In view of the demonstration of pretext, I
find that
[PAGE 7]
Creekmore established by a preponderance of the evidence that his
protected activities were a contributing factor in the layoff
decision and that the real reason he was laid off was his
engaging in protected activities. See St. Mary's Honor Center
v. Hicks, 113 S.Ct. 2742, 2752 (1993).
PSESI contends that the layoffs of Creekmore and four other
employees in September 1992 "were the initial step in a permanent
and financially necessary restructuring" due to a business
downturn. Resp. Br. at 37-38. Creekmore's 1991 performance
evaluation noted that despite his great efforts, the QA/QC
business met only 37 percent of its targeted sales that year.
T. 766-767; RX 20. Further, between 1987 and 1992, the profit
margins in that line had decreased from an average of 19 percent
to 7.5 percent. T. 351, 551, 769-771; RX 25. Obviously, the
combination of low sales and diminishing profit margin reflected
a serious downturn in the business line. Banda, who became
president of the company in April 1992, emphasized the need to
reduce costs to stem the decrease in profits. T. 552-553; RX 31,
RX 34. I find the evidence of a decline in PSESI's external
QA/QC business convincing.[6]
Even though PSESI needed to lay off personnel as a means to
decrease expenses, I am not convinced that PSESI would have
chosen Creekmore for layoff if he had not engaged in any
protected activities. Creekmore regularly received very positive
performance reviews, see CX 36-CX 38, and acted in behalf
of former PSESI president Wyvill during his absences from the
office. CX 33-CX 34. Despite Creekmore's strong performance and
27 years with PSESI and its predecessor, PSESI laid him off.
Prior to the September 1992 layoffs, Newholm's duties
included assisting Creekmore in selling QA/QC services to
external clients. T. 787, 799-801, 823. Therefore, laying off
Newholm would have helped to reduce costs in the QA/QC business
line to some extent. Since the company retained Newholm while it
laid off Creekmore, it had sufficient funds to retain one of the
managers who had helped to procure external QA/QC contracts.[7]
Banda admitted that Newholm's performance was not good,
T. 609, and that his reputation in the industry suffered because
he did not comply with procedures. T. 657. Notwithstanding
Newholm's reprimand and suspension, PSESI reinstated him and
assigned him to work on QA/QC business following Creekmore's
layoff. The company thus rewarded Newholm, the manager who both
condoned and ordered the premature issuance of good guy letters,
R. D. and O. at 30, and harmed Creekmore, the manager who
insisted on rectifying the problem. I find that PSESI did not
demonstrate by clear and convincing evidence that it would have
laid off Creekmore even if he had not engaged in protected
activities. PSESI therefore is liable under the ERA.
[PAGE 8]
Newholm claimed that Creekmore was aware of the practice of
issuing the letters prematurely. T. 1329, 1335-1336, 1338.
Another PSESI witness, former Manager of Security and Recruiting
Deborah Nichols, testified that Creekmore suggested that the
company issue good guy letters prior to the completion of the
background investigation.[8] T. 422-424. In addition, Richard
Schroeder, the Vice President of Quality and Operations of
PSESI's parent company, testified that Creekmore admitted that he
knew about the practice. T. 962.
Creekmore, however, adamantly denied either knowing about
the practice of backdating references or ordering employees to
issue the good guy letters prematurely. T. 1133, 1136. Based on
a close working relationship, Dennis Silver testified that
Creekmore did not and would not have promoted or condoned such
practices. T. 1081. Another former coworker, Richard
Sokolowski, testified to the same effect. T. 1063-1064, 1071.
In light of this contradictory evidence, the ALJ found that
Creekmore "did not order, condone or acquiesce in such security
violations. . . ." R. D. and O. at 22. The ALJ found
Creekmore's testimony more credible than that of PSESI's
witnesses, including Nichols, and I agree. I affirm the ALJ's
credibility findings since he observed the witnesses' demeanor as
they testified. See NLRB v. Walton Mfg. Co., 396 U.S.
404, 408 (1962); Pogue v. United States Dept. of Labor,
940 F.2d 1287, 1289 (9th Cir. 1991) (giving great deference to
credibility judgments of ALJ who observed the witnesses).
Since I credit Creekmore's testimony that he neither knew
about, or condoned, the premature issuance of good guy letters, I
also agree with the ALJ's finding that Creekmore did not
deliberately cause PSESI to violate the ERA. R. D. and O. at 22.
Hence, the provision at 42 U.S.C.A. § 5251(g) does not
remove Creekmore's protection under the ERA.[9] See Drew v.
Jersey Central Power & Light Co., Case No. 81-ERA-3, ALJ Rec.
Dec. and Ord., June 16, 1982, slip op. at 18-19 (denying summary
dismissal under § 5251(g) because there was no evidence that
the complainant deliberately caused a violation of law),
adopted, Sec. Dec. and Order, Jan. 13, 1984.
THE REMEDY
A successful ERA complainant is entitled to affirmative
action to abate the violation, including reinstatement to his
former position, back pay, costs, and attorney fees. 42 U.S.C.A.
§ 5851(b)(2)(B). The Secretary also may award compensatory
damages. Id.
I affirm the ALJ's recommendation that PSESI shall
immediately expunge from Creekmore's personnel records all
derogatory or negative information relating to his employment
with Respondent and his layoff on September 10, 1992 and shall
[PAGE 9]
provide neutral employment references when another firm, entity,
organization, or an individual inquires about Creekmore. R. D.
and O. at 55.
1. Reinstatement
Creekmore does not desire reinstatement to his former
position. Since his current position provides less pay and fewer
benefits, however, he is seeking an award of front pay that
represents the difference in pay and benefits between the two
positions until he reaches age 65. T. 290-291; CX 78.
In the alternative, if front pay is not awarded, Creekmore seeks
reinstatement.
Front pay is used as a remedy in lieu of reinstatement where
the trier of fact finds that a productive and amicable working
relationship would be impossible because of animosity or tension
between the parties or reduction of the employer s workforce.
Blum v. Witco Chemical Corp., 829 F.2d 367, 373-374 (3d Cir.
1987); McCuistion v. Tennessee Valley Authority, Case No.
89-ERA-6, Sec. Dec. and Ord., Nov. 13, 1991, slip op. at 23. A
court has reasoned that because "[r]einstatement advances the
policy goals of make-whole relief and deterrence in a way which
money damages cannot," it is "the preferred remedy in the absence
of special circumstances militating against it." Squires v.
Bonser, 54 F.3d 168, 172-173 (3d Cir. 1995). The First
Circuit has acknowledged that reinstatement "often will place
some burden on the [employer] since there will likely be tension
(or even hostility) between the parties when forcibly reunited,"
but found that such routinely incidental burdens were
insufficient in that case to "tip the scales against
reinstatement." Rosario-Torres v. Hernandez-Colon, 889
F.2d 314, 322-23 (1st Cir. 1989) (en banc). Another court opined
that front pay is appropriate when "[r]etaliation would [be] the
order of the day" if the plaintiff were reinstated.
Fitzgerald v. Sirloin Stockade, Inc., 624 F.2d 945, 957
(10th Cir. 1980).
Likewise, the Secretary has recognized that hostility in the
work environment may mean that reinstatement to the same position
in the same location is not appropriate for a successful ERA
complainant. In Boytin v. Pennsylvania Power & Light Co.,
Case No. 94-ERA-32, Dec. and Order of Remand, Oct. 20, 1995, slip
op. at 12, the complainant's supervisors regularly chatted with
him for approximately two hours a day when they checked his post,
but after he engaged in protected activities, they instead stared
at him silently for 15 minutes during post checks. Consequently,
the Secretary found that "given the hostile working conditions
and the degree of animus" at the former work place, the
complainant should be given a comparable position at a different
location upon reinstatement. Id.
In this case, the ALJ found that "tension between the
[PAGE 10]
parties was manifested in the courtroom as Complainant confronted
and testified against his former superiors, colleagues and
coworkers. R. D. and O. at 50. The ALJ declined reinstatement
and instead ordered front pay calculated as the present value of
15 years' worth of the difference in salary and pension benefits
between Creekmore's former position at PSESI and his new position
with TAG. PSESI argues that front pay is not available because
Creekmore did not prove that a productive and amicable working
relationship would be impossible. Resp. Br. at 37.
In contrast to other cases in which courts have ordered
front pay, this record does not reveal unusual work place tension
or animosity between Creekmore and his superiors or his
coworkers. There were no incidents of flared tempers, strong
language, or the like. I find that the observed tension between
the parties at the hearing is not sufficient to demonstrate the
impossibility of a productive and amicable working relationship
in this case. Therefore, front pay is not appropriate here as a
substitute for reinstatement.[10] See Nolan v. AC
Express, Case No. 92-STA-37, Dec. and Remand Order, Jan. 17,
1995, slip op. at 16-17 (award of front pay requires evidence of
manifest hostility at work, not simply animosity between parties
at the hearing). Accordingly, I shall order PSESI to reinstate
Creekmore to the same or a substantially similar position with
the same pay and benefits.
2. Back pay
A successful complainant normally is entitled to back pay
from the date of termination until reinstatement, less any
interim earnings, Sprague v. American Nuclear Resources,
Inc., Case No. 92-ERA-37, Sec. Dec. and Ord., Dec. 1, 1994,
slip op. at 12, as well as interest on the back pay amount, at
the rate specified for underpayment of Federal income tax in 26
U.S.C. § 6621. Blackburn v. Metric Constructors,
Inc., Case
No. 86-ERA-4, Dec. and Order on Damages, Oct. 30, 1991, slip op.
at 18-19, aff'd in relevant part and rev'd on other grounds,
Blackburn v. Martin, 982 F.2d 125 (4th Cir. 1992).
Creekmore received severance pay equal to his PSESI salary
from September 28, 1992 through May 29, 1993. RDO-MR at 3; CX
10. Consequently, the amount of severance pay shall be offset
against the back pay award. McCuistion, slip op. at
24.[11]
PSESI argues that the ALJ's back pay award is flawed because
it assumes that Creekmore would have continued to be employed by
PSESI after the company was sold, restructured, and moved its
operations to Florida in 1994. Resp. Mem. in Opp. to Comp.
Motion for Reconsideration at 3-4. Since a number of managerial
employees were laid off prior to the move to Florida, PSESI
contends that it is likely that Creekmore also would have been
[PAGE 11]
laid off. Id. The purpose of a back pay award is to
make the employee whole by restoring him to the same position he
would have been in if not discriminated against. Blackburn,
slip op. at 11 and cases there cited. The Secretary has
found that "when an employee who was laid off for discriminatory
reasons nevertheless would have been laid off for legitimate
reasons, back pay would be cut off at the point of the legitimate
layoff." Nichols v. Bechtel Construction, Inc., Case No.
87-ERA-0044, Final Dec. and Order, Nov. 18, 1993, slip op. at 10,
aff'd, 50 F. 3d 926 (11th Cir. 1995).
PSESI, however, has not demonstrated that Creekmore
definitely would have been laid off when the company was sold and
relocated. Although some managers were laid off, the managers
who took over Creekmore's QA/QC work (Chalfant and Newholm) were
not among them. See RX 56 at ¶7 (listing the
executives and managers who were laid off). Any uncertainties in
establishing the amount of back pay are resolved against the
discriminating party. Rios v. Enterprise Ass'n Steamfitters
Local No. 638, 860 F.2d 1168, 1176 (2d Cir. 1988);
Lederhaus v. Donald Paschen, Case No. 91-ERA-13, Sec. Dec.
and Ord., Oct. 26, 1992, slip op. at 10. I therefore find that
the back pay period will continue until Creekmore's reinstatement
or declination of an offer of reinstatement.
PSESI contends that Creekmore did not mitigate his back pay
damages because he declined to be considered for a position with
another ABB company at his former rate of pay. Resp. Rebuttal
Br. at 10. I find that timing is crucial to this issue.
Creekmore explained that he had to accept or reject TAG's offer
prior to his scheduled interview with the ABB company. The
decision to accept a definite offer rather than declining it to
pursue the possibility of an offer at a higher pay rate was
appropriate and consistent with Creekmore's obligation to
mitigate damages. "An employee is not required to go to heroic
lengths in attempting to mitigate his damages, but only to take
reasonable steps to do so." Ford v. Nicks, 866 F.2d 865,
873 (6th Cir. 1989), citing Rasimus v. Michigan Dept. of
Mental Health, 714 F.2d 614, 624 (6th Cir. 1983), cert.
denied, 466 U.S. 950 (1984).
Since the existing record does not include Creekmore's
actual earnings since 1993, I am unable to calculate the exact
amount of back pay. Accordingly, I shall remand to the ALJ for
calculation of the back pay award. When establishing the
difference between Creekmore's actual earnings and what he would
have earned but for the layoff, his constructive PSESI salary
shall include regular annual increases.
3. Benefits
[PAGE 12]
Reinstatement to his former, or a substantially equivalent,
position "together with the . . . terms, conditions, and
privileges of employment," 42 U.S.C.A. §5851(b)(2)(B), will
require PSESI to restore Creekmore's employee benefits from the
time of layoff until reinstatement (or declination). This
shallrequire PSESI to restore Creekmore's health, pension, and
other related benefits.
PSESI is required to pay medical expenses that Creekmore
incurred because of the termination of his PSESI medical
benefits, including premiums for family medical coverage while he
was seeking permanent employment. T. 262. The ALJ found that
the cost of those insurance premiums plus the deductibles paid
totaled $1050, R. D. and O. at 16, 51, and I order PSESI to pay
that amount.
4. Compensatory damages
To recover compensatory damages, Creekmore had "to show that
he experienced mental and emotional distress and that the
wrongful discharge caused the mental and emotional distress."
Blackburn v. Martin, 982 F.2d 125, 131, citing Carey v.
Piphus, 435 U.S. 247, 263-264 and n.20 (1978). An award "may
be supported by the circumstances of the case and testimony about
physical or mental consequences of retaliatory action."
Lederhaus v. Paschen, Case No. 91-ERA-13, Sec. Dec., Oct.
26, 1992, slip op. at 10 and cases there cited. A complainant
must prove the existence and magnitude of subjective injuries
with competent evidence. Id., citing Carey v. Piphus, 435
U.S. at 264 n.20.
Creekmore suffered a heart attack on June 5, 1993, during a
hiatus in the hearing. The ALJ found that stress resulting from
Creekmore s layoff was the major contributing factor to his heart
attack. R.D. and O. at 37. The ALJ recommended an award of
$40,000 in compensatory damages for emotional pain, mental
anguish and the emotional stress [Creekmore] has experienced
herein, as well as the damage to his reputation in the nuclear
power industry. R.D. and O. At 53.
The medical evidence in support of the ALJ s conclusion of
causation consisted of one paragraph in a brief letter from the
treating cardiologist, John P. Parker:
Based upon Mr. Creekmore s personal and medical
history, and my examination of his present medical
condition, I believe that the major contributing factor
to Mr. Creekmore s present heart attack was the stress
he was undergoing as a result of his termination from
his employment in September, 1992, and the resulting
turmoil in his life. My opinion is based upon my
training and experience as a cardiologist and
reasonable medical probability.
[PAGE 13]
RX 70. The cardiologist did not testify and therefore he was not
subjected to cross examination concerning his opinion.
Respondent s medical expert, Joel M. Gore, a cardiologist on
the staff of the University of Massachusetts Medical School,
testified and was cross examined at an evidentiary deposition.
Gore reviewed Creekmore s medical records and disagreed with
Dr. Parker s opinion letter. RX 49. Gore testified that,
although in his experience he had many patients who had undergone
physical stress and suffered a heart attack shortly thereafter,
RX 52 at 14, he was not aware of any studies that have shown
that emotional stress per se without underlying cardiac condition
or other factors can lead to a heart attack. RX 52 at 9; see
also at 32-33. Dr. Gore noted that there was no
documentation in the medical records of Creekmore s
hospitalizations that he was under a great deal of stress. RX 52
at 15. Dr. Gore pointed to Creekmore s elevated cholesterol
level, RX 52 at 22-24, abnormal electrocardiogram taken prior to
the heart attack, id. at 28, strong family history of
early coronary heart disease, id. at 37, male sex, middle
age, and living in the United States, id. at 39, as risk
factors and risk markers that contributed to Creekmore s heart
attack. Dr. Gore concluded that these risk factors and markers
were the reason for Creekmore s heart attack, and that mental
stress due to his layoff was not the cause. RX 49.
Notwithstanding my reservations regarding the ALJ s
conclusion that Creekmore s heart attack was the natural
sequela of his layoff, R.D. and O. At 37, I find that the record
contains ample evidence of emotional distress that justifies an
award of substantial compensatory damages. Creekmore testified
credibly that his layoff caused him embarrassment because in
seeking a new job, he had to explain to others in the industry
that he had been laid off after 27 years with one employer. T.
283-284. He experienced emotional turmoil due to the disruption
to him and his family from his temporary consulting work at a
distance from his home and his eventual relocation.
Creekmore also testified that upon his layoff, he panicked
about being able to pay his debts and requested distribution of
his PSESI retirement fund, thereby incurring substantial taxes
and penalties. T. 263-264. Since he had the choice of keeping
the retirement contributions invested in a way that would not
have caused adverse tax consequences, Creekmore should not be
separately compensated for those penalties, as the ALJ
recommended. R.D. and O. at 52. Rather, I view his panic as an
indication of the emotional turmoil that resulted from his
discriminatory layoff.
In light of the demonstrated panic, embarrassment, pain, and
suffering, I find that Creekmore is entitled to an award of
$40,000 as compensatory damages. See Gaballa v. The Atlantic
[PAGE 14]
Group, Case No. 94-ERA-9, Fin. Dec. and Order, Jan. 18, 1996,
slip op. at 7 (awarding $35,000 as compensatory damages for
emotional distress from blacklisting in violation of the ERA).
Interest does not accrue on the compensatory damages award.
See, e.g., Lederhaus, slip op. at 16; McCuistion,
slip op. at 24.
5. Costs, expenses, and attorney fees
The ERA provides that the Secretary may award the costs and
expenses a complainant reasonably incurred in connection with his
complaint. 42 U.S.C.A. § 5251(b)(2)(B). In that regard,
the ALJ recommended awarding $2,346 to replace lost wages because
Creekmore had insufficient vacation time to attend the hearing
and had to take leave without pay from his new job. R. D. and O.
at 50. I will not separately award this cost because Creekmore's
back pay will cover it. Since his interim earnings were reduced
for the time he was on leave without pay, Creekmore's back pay
will be higher as a result.
Reimbursable costs include Creekmore's transportation to,
and lodging and meals while attending, the hearing. Tritt v.
Fluor Constructors, Inc., Case No. 88-ERA-29, Dec. and Ord.
of Remand, Mar. 16, 1995, slip op. at 15, petition for review
docketed sub nom. Fluor Constructors, Inc. v. Sec'y of Labor,
No. 95-2827 (11th Cir. June 19, 1995). Accordingly, PSESI must
reimburse Creekmore for those costs. On remand, the ALJ shall
permit Creekmore to submit evidence documenting these costs, and
the ALJ shall recommend the amount to which Creekmore is
entitled.
Complainant's attorney submitted two petitions for
attorney's fees and costs, to which PSESI did not file responses.
Accordingly, I affirm the ALJ's recommendation of an award of
attorney's fees and costs totaling $60,454.74 ($50,941.92, R. D.
and O. at 52 and CX 80, plus $9,512.82 in supplemental fees and
costs, RDO-MR at 9 and CX 88).
6. Lost equity on Complainant's house
The ALJ recommended an award of $34,500, representing the
"lost equity" when Creekmore sold his Connecticut residence and
moved his family to Virginia because of his new position with
TAG. R. D. and O. at 51; RDO-MR at 6-9. Had Creekmore not been
laid off in 1992, and had he remained employed with PSESI when
the company relocated to Florida, he would not have been
reimbursed for any loss upon the sale of his home. CX 56.
There is no record evidence indicating a change in local real
estate values between the time Creekmore sold his home in
Connecticut (May 1993) and the time PSESI relocated to Florida
(September 1994). Therefore I will not award any damages for
lost equity.
Nor is Creekmore entitled to payment of $7,500, which the
ALJ recommended awarding for "Virginia bank payments for new
house." R. D. and O. at 51. Creekmore testified that he made
the bank payments to secure a mortgage on his new Virginia
residence. T. 261. Since he would have had to obtain a new
mortgage if he moved to Florida with PSESI, he is not entitled to
a payment that would place him in a better position than if he
had not been discriminatorily laid off.
7. Job search expenses
In seeking new employment, Creekmore incurred job search
expenses of $2,000 for mailing, telephone, and travel. R. D. and
O. at 16. The ALJ correctly recommended awarding these job
search expenses, R. D. and O. at 51, and I require PSESI to pay
them.
8. Travel expenses to and from Virginia
Finally, the ALJ recommended awarding $2,240 to cover travel
expenses for two trips Creekmore's family made to visit him in
Virginia prior to the time the family moved and joined him there.
R. D. and O. at 16, 51. Creekmore would not have incurred this
expense if he had not been laid off and therefore I affirm the
award.
ORDER
1. Respondent shall reinstate Complainant to his former
position or a substantially comparable position, together with
the same terms, conditions, and privileges of employment.
2. Respondent shall immediately expunge from Complainant's
personnel records all derogatory or negative information relating
to his employment with Respondent and his layoff on September 10,
1992 and shall provide neutral employment references when another
firm, entity, organization, or an individual inquires about
Complainant.
3. Respondent shall pay Complainant $1050 for medical
expenses and $2040 for his family's travel expenses.
4. Respondent shall pay Complainant $40,000 in compensatory
damages.
5. Respondent shall pay Complainant's attorney $60,454.74 in
costs and attorney's fees.
6. On remand, the ALJ shall determine the amount of back pay
plus interest and the costs for Creekmore's travel, lodging, and
meals to attend the hearing. The ALJ shall afford the parties
the opportunity to submit evidence on the remanded issues. The
ALJ's recommendations on back pay and hearing related costs shall
be set forth in a supplemental recommended decision and order.
SO ORDERED.
THOMAS P. GLYNN
Deputy Secretary of Labor
Washington, D.C.
[ENDNOTES]
[1] Secretary of Labor Robert Reich has recused himself in this
case.
[2]
The 1992 amendments to the ERA apply to this complaint,
which was filed in 1993. See Sec. 2902(I) of the Comprehensive
National Energy Policy Act of 1992, Pub. L. No. 102-86, 106 Stat.
2776.
[3]
Asea Brown Boveri (ABB) acquired Combustion Engineering,
Inc. in 1989. PSESI was a wholly owned subsidiary of Combustion
Engineering. PSESI was sold to Octagon Inc. in 1984 and the
"ABB" portion of its name no longer applies. RX 56. For
consistency, Respondent's name is listed in the caption as it
appeared in the Administrative Law Judge's decisions.
[4]
It would be proper to view the evidence in favor of the
non-moving party on a motion for summary decision. Webb v.
Carolina Power & Light Co., Case No. 93-ERA-42, Dec. and
Remand Ord., July 17, 1995, slip op. at 5.
[5] Shusterman does illustrate the strong deference
given to an ALJ's credibility assessments. There, both the ALJ
and the Secretary credited respondent's witnesses' testimony that
the complainant was selected for layoff because of weak job
performance. As I explain below, in this case I agree with the
ALJ that PSESI's witnesses were not credible concerning the
reason Creekmore was laid off.
[6]
I disagree with the ALJ to the extent he questioned
PSESI's need to reduce the QA/QC staff. R. D. and O. at 33.
[7] Creekmore, an experienced manager with PSESI, had the same
or better "certifications" as Newholm. T. 1170-1171.
[8] Nichols also claimed that in a meeting with her and
Creekmore, former PSESI president Wyvill ordered her to falsify
good guy letters. T. 424. Both Wyvill, T. 774-775, and
Creekmore, T. 1136, vehemently denied her testimony on this
issue. Like the ALJ, I do not credit Nichols' testimony.
[9]
That subsection provides:
(g) Deliberate violations
Subsection (a) of this section shall not apply with respect
to any employee who, acting without direction from his or her
employer (or the employer's agent), deliberately causes a
violation of any requirement of this chapter or of the Atomic
Energy Act of 1954, as amended.
[10] The ALJ recommended awarding front pay in several separate
amounts, and all such amounts are rejected here because I have
ordered reinstatement to make Creekmore whole. The following
sums are disallowed: "lost wages--Atlantic Group" ($34,640),
RDR-MR at 4-5; "loss of regular and pension credits" ($146,728),
R. D. and O. at 49; "loss growth on pension sum paid" ($177,550),
id., and "present value of lost vacation time" ($29,727),
RDR-MR at 5-6.
[11] Creekmore also received a payout of his accrued vacation
time. PSESI shall afford him the option of buying back the
vacation time if he so desires.
