Date: February 19, 1997

Case No.: 91-SWD-0001

In the Matter of:

ERNEST A. OLIVER,
    Complainant,

    v.

HYDRO-VAC SERVICES, INC.,
    Respondent,

ERNEST A. OLIVER
    pro se

WILLIAM G. COLVIN, Esq.
    For Respondent

Before: DANIEL A. SARNO, JR.
    Administrative Law Judge

    This proceeding arises from a claim under the Solid Waste Disposal Act of 1988, 42 U.S.C. §6971, and the Federal Water Pollution Control Act of 1988, 33 U.S.C. §1367 ("the acts"). Complainant seeks damages for wrongful termination.

    A formal hearing was held in this case on January 23-24, 1991 by Administrative Law Judge W. Ralph Musgrove. Judge Musgrove passed away after the hearing and the case was reassigned to Administrative Law Judge Robert M. Glennon. Judge Glennon issued a recommended decision and order on January 21, 1992, dismissing the complaint.¹ Upon review of this recommended decision on November 1, 1995, the Secretary of Labor found that Respondent, Hydro-Vac, had violated the acts in terminating Complainant and ordered Respondent to reinstate Complainant and remanded the case to this office for a recommended decision on the amount of appropriate damages. A second hearing was held in this matter on November 7, 1996 in Chattanooga, Tennessee. Complainant

offered Exhibits CX-A through CX-L.² Respondent offered Exhibits RX-1 through RX-3. All but CX-E were admitted into evidence. Both parties filed post-hearing briefs. The findings and conclusions which follow are based on a complete review of the entire record in light of the arguments of the parties, applicable statutory provisions, regulations, and pertinent precedent.

    Within a week of his termination Complainant obtained employment with Technical Laboratories (hereinafter Tech. Labs.) and was placed in charge of the chemistry laboratory, doing substantially similar work to that done at Hydro-Vac (Tr. 26). Tech. Labs. paid Complainant $22,000 per year as well as providing health care benefits at the rate of $260.90³ per month (Tr. 67). There was an opportunity for advancement, future retirement benefits, and profit sharing plans at Tech. Labs. which were unavailable at Hydro-Vac (Tr. 68). Complainant voluntarily resigned his position at Tech. Labs. on May 10, 1991, eight months after commencing employment (CX-H). Complainant has provided several reasons for his resignation, including alleged requests by Tech. Labs. to perform illegal

    Following his resignation, Complainant remained unemployed until Spring 1992 when he began to teach Chemistry and Microbiology laboratories at Chattanooga State Technical Community College (CSTCC) (Tr. 41). CSTCC did not renew complainant's contract and Complainant ceased teaching in August 1993.⁴ Complainant did not work again until July 1995. During his periods of unemployment and employment part-time at CSTCC, Complainant sought employment only five times.⁵ Complainant applied to the chemistry department at the University of Tennessee at Chattanooga⁶ , the Georgia Bureau of Investigation Crime Laboratory⁷ , the Methodist Church Neighborhood Centers⁸ , and Koester Environmental Services⁹ . Complainant also attempted to get on the register in Nashville as a laboratory scientist in the crime lab.¹⁰ Complainant maintains that he couldn't take a job during much of this time because of the time constraints of extensive litigation initiated by himself (Tr. 45).

    Complainant is no longer seeking employment similar to that performed for Respondent (Tr. 47). He is presently self-employed as a plumbing contractor after receiving certification as a master plumber (Tr. 47). Complainant claims he left the field because he was unable to obtain employment due to an alleged conspiracy against him.¹¹ Complainant did state that he would not always fill out an application because it was a "waste of time" (Tr. 75).

    Complainant and Respondent have stipulated and I find that Complainant has incurred attorney fees in the amount of $5,000 (Tr. 61) and costs in the amount of ,000 (Tr. 63).

    I will compute complainant's damages using the $25,000 per year which Respondent and Complainant agreed to as Complainant's salary. Complainant urges me to use a higher figure as he states there was a "gentleman's agreement" that Complainant would remain with Hydro-Vac to develop a full-service laboratory and share in the profit's of such a venture (Tr.11, 18, 53). Mr. Foxworth specifically denied the existence of such an agreement and there is no evidence of it beyond Complainant's testimony (Tr. 116-7, 119)¹² . Complainant has the burden of making a prima facie showing of damages. He has failed to meet the burden of showing any damages beyond lost wages of $25,000 per year.

    While working for Tech. Labs., Complainant earned $22,000 per year and health care benefits worth $3,130.80 per year, for an aggregate compensation of $25,130.80. The position with Tech. Labs. was substantially similar to that at Hydro-Vac.¹³ Thus, for the period Complainant was employed at Tech. Labs., Respondent has carried its burden of showing mitigation efforts which reduce the amount of recovery. Because Complainant earned more for his work at Tech. Labs. than at Hydro-Vac, he is entitled to no back pay from August 27, 1990 until May 10, 1991.

    Complainant voluntarily resigned from Tech. Labs. Complainant maintains that he left Tech. Labs because they allegedly requested that he perform illegal analyses. Respondent has the burden of showing a failure to mitigate damages and has not presented any evidence to contradict this testimony. Respondent has therefore not carried its burden to show lack of diligence by Complainant's resignation from Tech. Labs. An ex-employee is not required to remain in such

    This does not end Complainant's duty to mitigate, however. Respondent may show that following Complainant's resignation, there were comparable jobs available and Complainant failed to exercise reasonable diligence in obtaining such positions. In September 1990, it took Complainant less than a week to find a new comparable position (Tr. 26). It seems reasonable, then, that if Complainant had diligently searched for a new position following his resignation, he could have found one within six months. In May 1991, when Complainant resigned from Tech. Labs., he had a strong employment history, was active in his field and certainly could have found employment. Employer offered testimony that there were positions available similar to those at Hydro-Vac. Mr. Foxworth, President of Hydro-Vac, testified that there were tech labs, industrial waste water companies, and other labs in the area of Chattanooga and that the positions in the open market were more suited to Complainant's skills than was the position at Hydro-Vac as they were full service analytical labs (Tr. 106). Complainant repeatedly stated that his skills were worth far more in the open market than the $25,000 per year that Hydro-Vac paid him and that he was a highly respected member of the scientific community (CX-18).¹⁴ Complainant also indicated that there are positions available that would be comparable to what he had as lab director at Hydro-Vac, but he does not feel they warrant his "expertise" (Tr. 88). The facts indicate that Complainant only applied for two positions following his resignation from Tech. Labs. before taking non-comparable work at CSTCC,¹⁵ and only applied for five positions since his termination from Hydro-Vac. Complainant looked for positions only in the public newspaper. This is not a diligent search for a highly trained individual in a scientific field. Complainant is entitled to back pay for six months from the date of his resignation from Tech. Labs.

    B. Reinstatement or Front Pay

    The Secretary ordered Respondent to reinstate Complainant. However, reinstatement is not the appropriate remedy if it would be inappropriate or infeasible. Respondent no longer performs the function for which Complainant was employed. Respondent now has outside contractors performing the duties which Complainant formerly performed. It is impossible to reinstate Complainant as the position no longer exists due to company restructuring (Tr. 54).

    In addition, even if Complainant's position were available, it seems infeasible for Complainant to return to his position. The Secretary found that Complainant had made a protected complaint which was reasonable, but false. Hydro-Vac was not violating any environmental statute. However, Complainant continues to contend that he will only return to employment with Respondent on his terms: 1) $50,000 per year in salary; 2) Respondent's assurance of no further illegal activity; and 3) Complainant be allowed to open a full-service laboratory. Respondent has made it clear that any intention to open a full service laboratory has been abandoned as infeasible (Tr. 101, 109, 112, 116). There is no evidence to indicate that Respondent is engaging in any illegal activity at this time.¹⁶ Finally, Complainant would return, if at all, at his salary of $25,000 per year. The only evidence of an increase in salary was the July 16, 1990, letter by Complainant requesting an increase to $50,000 (RX-B). Respondent never addressed this request. It is clear that if reinstatement were possible, it would be infeasible due to the present circumstances and animus between Complainant and Respondent (Tr. 99-100). Thus, front pay would be the appropriate remedy in this case.

    Complainant is required to mitigate his damages by seeking employment which is substantially similar to that for which he was terminated. Complainant is a well-educated individual and was employed in a highly scientific and specific area. Complainant has chosen to seek employment in another field and has shown no evidence that he intends to seek future employment similar to that performed at Hydro-Vac. I find no credible evidence in the record that complainant was blackballed or driven from the field in any way, as he contends. At best, Complainant's assertions amount to pure speculation. Complainant is perfectly free to make the choice to go into a new line of work, but is not free to impose the costs of that decision on his former employer. Ford v. Nicks, 866 F.2d 865, 875 (6th Cir. 1989). Complainant has failed to mitigate his damages. However, as front pay is awarded from the date of judgment, Complainant should be allowed a reasonable period of time to obtain employment comparable to that which he performed at Hydro-Vac, should he choose to do so. Because Complainant has been absent from the field for several years, it is reasonable that it could take up to one year to find a comparable position. Therefore, Complainant is entitled to front pay for one year from the date of judgment.

    Complainant requests that I award compensatory damages in this case. The applicable regulation, 29 C.F.R. §24.6(b)(2) states, in part, "The Secretary may, where deemed appropriate, order the party charged to provide compensatory damages to the complainant." Compensatory damages may be awarded to compensate Complainant for emotional pain and suffering, mental anguish, embarrassment, humiliation, and cost of searching for a new job. Complainant need not present medical or psychological evidence to prevail. Creekmore v. ABB Power Systems Energy Services, Inc., 93-ERA-24 (Dep. Sec'y. Feb. 14, 1996). However, here, there is no evidence in the record to support Complainant's assertion that he is entitled to compensatory damages. Complainant argues that Respondent has attempted to damage Complainant's reputation and has engaged in any illegal activity.¹⁷ However, Complainant has offered nothing but wild assertions and speculation to connect any action by Respondent to his embarrassment or inability to find a new job. Respondent has adamantly denied any action detrimental to Complainant following his dismissal from employment. Complainant has presented no evidence of his entitlement to compensatory damages. Complainant and Respondent have stipulated that Complainant has ,000 in costs related to this litigation and is due $5,000 in attorney fees and I order that these amounts be paid to Complainant.

    D. Interest

    Complainant requests interest on past-due amounts at a 10 percent interest rate under Tennessee law. However, the interest rate in cases such as this shall equal "the coupon issue yield equivalent . . . of the average accepted auction price for the last auction of 52 week United States Treasury Bill settled immediately prior to the date of judgment." 28 U.S.C. §1961. The appropriate rate is 5.62%.

¹Judge Glennon has since retired.

²The following abbreviations will be used as citations to the record:

CX - Complainant's Exhibits

RX - Respondent's Exhibits

TR - Transcript of November 1996 hearing

³Both Complainant and Employer compute back pay based on health care benefits worth $206.90 (Tr.26). However, a letter from Tech. Labs. states that the cost of health care benefits was $260.90 (CX-G).

⁴Complainant is currently involved in a law suit based on his claim that his dismissal was a result of age and gender discrimination.

⁵In his responses to Respondent's interrogatories, Complainant indicated that he had not applied for any positions during the period before and during his employment at CSTCC (RX-A). However, at hearing he testified that he had merely forgotten the applications he made during this time.

⁶Complainant interviewed for a position as an assistant to the head of the Chemistry Department at UTC while employed at CSTCC, but was not offered the position. Complainant also applied for a position as an adjunct professor, some time later, but was not offered this position as well (Tr. 74).

⁷Complainant applied for a position with a proposed crime lab some time in 1992 or 1993. The crime lab was never built and, thus, the position was never offered to Complainant (Tr. 80-1).

⁸The position at the Methodist Church Neighborhood Centers was as an Environmental Specialist (CX-J). Complainant applied for this position in 1994 after his contract with CSTCC was not renewed (Tr. 43).

⁹The position at Koester Environmental Services was as an engineer/environmental scientist. Complainant submitted a resume and was notified by letter on June 25, 1996 that the position had been filled (CX-K).

¹⁰There is no indication in the record as to when this inquiry took place. Complainant was informed by the crime lab that he was not qualified for the position (Tr.78-9)

¹¹The record in this case is substantial and Complainant asserted several times that there existed an alleged conspiracy to commit EPA violations in Chattanooga (Tr.58, 74, 82). However, these issues are not germane to a finding of damages in this case.

¹²In response to whether that was a gentleman's agreement to set up a full service laboratory, Mr. Foxworth stated, "Absolutely no. Never was it discussed. You [Complainant] have already stated to this Court that I got a 9th grade education. Now why in the world with a 9th grade education would I want to get into drug testing. Absolutely no" (Tr. 119).

¹³In fact, the promotional opportunities and compensation were greater at Tech. Labs. than they were at Hydro-Vac.

¹⁴Complainant offered this evidence to support his contention that the only reason he agreed to this salary was the promise of future earnings through the development of a full service lab at Hydro-Vac (Tr. 8, 11, 53). Mr. Foxworth testified that there was no agreement (Tr. 116-7). Because Complainant has the burden of proof in this area, I find that Complainant has failed to establish by the weight of the evidence an agreement as to future compensation.

¹⁵Complainant's position at CSTCC does not meet his duty to mitigate damages. Complainant chose to pursue non-comparable work at CSTCC without making a diligent search for comparable work. He is free to do so, but Respondent is not responsible for wage loss because of this decision. Ford v. Nicks, 866 F.2d 865, 875 (6th Cir. 1989).

¹⁶There is also no evidence that at the time that Complainant was employed with Respondent that any illegal activity was being conducted at Hydro-Vac. The Secretary found only that Complainant had a reasonable belief that illegal activity was taking place and therefore his report of this alleged activity was protected (D&O 6-13).

¹⁷Aside from the wrongful termination, for which back pay, front pay, and costs are awarded here.