On January 6, 1997 the Administrative Review Board issued a Decision and Remand Order (hereinafter "DRO"), which Order disagreed with Administrative Law Judge Moore's recommendation that the complaint be dismissed. The ARB held that the stated legitimate reason for firing Complainant was not credible and that Complainant had established by a preponderance of the evidence that he was discharged for engaging in protected activity. The ARB then remanded to Judge Moore for "any further proceedings she deems necessary" and "a supplemental recommended decision on the full complement of remedies to which [Complainant] is entitled." (DRO, at p. 7)

   The Board, relying on the remedial section of the Act, 49 U.S.C. §31105(b)(3)(A), held "[Complainant] is entitled to an order requiring [Respondent] to

take affirmative action to abate the violation, reinstate him to his former position with the same pay and terms and privileges of employment, and compensatory damages, including back pay. The Board may also assess against [Respondent] the costs, including attorney's fees, reasonably incurred in bringing the complaint." (DRO, at p. 7) The Board then noted the parties had stipulated to the amount of back pay; that Complainant had declined an offer of reinstatement in May 1995, which may affect the accrual of potential back pay liability; and that Respondent disputes whether Complainant's depression and related injuries were proximately caused by his discharge. Finally, the Board instructed Judge Moore to accept a detailed petition for costs and attorney's fees and to await Respondent's comments on those amounts. (DRO, at p. 8)

   On January 24, 1997 Chief Administrative Law Judge Vittone issued an Order of Reassignment. That Order informed all parties concerned that this matter was being reassigned to the undersigned because Judge Moore was no longer available to the Office of Administrative Law Judges.

   This Judge then issued a Notice of Hearing and Pre-hearing Order informing all parties that a remand hearing would be held on April 8, 1997. On March 11, 1997 this Judge issued an Order Canceling Hearing and Establishing Briefing Schedule.

   Respondent, by letter dated March 13, 1997, has objected to this Judge's cancellation of the hearing on remand. Respondent reiterates that objection in its brief on the issue of damages. (Respondent's Brief, at pp. 1-3) Respondent asserts that "much of the Complainant's testimony is self-serving, shaped to fit the claims he asserts, and rambling or unresponsive." (Respondent's Brief, at p. 2) Stressing the fact that Judge Moore did not find Complainant to be a credible witness, Respondent suggests this Judge cannot now decide the issue of appropriate damages without the benefit of making my own credibility determinations. Accordingly, the Respondent requested this Judge listen to tapes of the original hearing, that I certify that I did so, and that I foreclose an award of any damages for that period after February 22, 1996, the date on which the hearing before Judge Moore concluded.

   It is clear that every remand mandate should be strictly followed within the confines of the mandate order. See Tritt v. Fluor Constructors, Inc., 88-ERA-29 (ALJ 8/29/94). It is equally clear, however, that where a remand mandate is issued with directions to accomplish a certain act, but without indicating how the act shall be performed, there exists a large measure of discretion in the performance of the act. Id. An administrative law judge has broad discretion in his or her implementation of a remand order where the direction from the reviewing authority is not specific. In this case, the Board remanded on the issue of damages and generally directed Judge Moore to initiate any proceedings she deemed necessary. The mandate of this remand is not expanded or lessened by virtue of the reassignment to the undersigned. While this

Judge will not have had the benefit of hearing the live testimony of the Complainant, such is not necessary as the Administrative Review Board has held, as a matter of law, that Complainant has established a prima facie case that he had engaged in protected activity, that he was illegally terminated because of such protected activity and that the sole remaining issue is the remedy to which Complainant is entitled.

   Accordingly, the present posture of this matter does not necessitate a hearing on remand. As will become evident in the statement of facts and application of law which follows, there is sufficient, independent evidence apart from Complainant's testimony, which Respondent contends is not credible, to support the following damages. Therefore, my decision would be unchanged even if I were to completely discredit Complainant's testimony at hearing. Respondent's requests, therefore, are hereby DENIED.

   The Complainant was terminated from Respondent corporation on December 23, 1993. Complainant testified at hearing that upon termination, he started "applying for jobs left and right and filling out new applications of places I had already been before, before I got with BSP." (TR 140) Although Complainant could not recall the names of all the employers with which he sought employment, he did proceed to specifically name a number of employers within the trucking industry (TR 140-142), and also testified to the names of employers with which he applied for non-trucking jobs. (TR 141) Complainant testified he was required by unemployment to fill out at least three (3) applications per week and Complainant states he did just that until June of 1994. (TR 141) The job search continued, according to Complainant, from the time he was terminated in December 1993 to February 1995. (TR 143)

   Complainant testified he ended his job search in February 1995 because "something snapped." (TR 144) Complainant's "mind started racing, and I started forgetting things. And I didn't feel like I was capable to do much anymore at that time. ...And then the Doctor checked me out." (TR 144)

   On or about May 1, 1995 Respondent extended to Complainant an offer of reinstatement. (RX 12) There is, in fact, corroborating evidence that Complainant did receive the letter and actually consulted his physician about the offer. (TR 379) The offer of reinstatement was copied to Complainant's counsel of record on or about May 5, 1995 and Respondent followed-up on the offer with a letter dated May 22, 1995. It is apparent that Complainant's counsel relayed to Respondent, during a telephone call on May 26, 1995, that Complainant was unable to return to work at Respondent corporation as a driver or in any other capacity due to doctor's orders. (RX 12)

   Complainant testified at hearing that he received the offer of reinstatement in May 1995 (TR 169; 266), and that he did not know whether the offer of reinstatement was for a

driving position or any other job. (TR 266-67) Nevertheless, Complainant states he did not feel capable of performing his job duties correctly because he was forgetting things, having a hard time reading small print, and things were racing in his mind. (TR 170) He was also worried Respondent would try to find a way to get rid of him. The offer of reinstatement was discussed with Dr. Farrand, who advised Complainant that he perhaps could take a job with another company, but not with Respondent. (TR 170; 273) The Doctor, Complainant testified, advised that a job with Respondent would be too stressful. (TR 170)

    The medical report of Dr. Merill R. Farrand, Jr., who has provided primary care for Complainant since February 9, 1995, was admitted into evidence at hearing. (CX 9) Dr. Farrand, who also testified at hearing, has been a solo private practitioner in Kennebunk, Maine, since 1985 and has medical training in a broad background of rotations involving a variety of fields, including psychiatry.

(Id.) Later in the report, Dr. Farrand states "I believe that [Complainant's] loss of employment as a truck driver is either the sole or a major contributor" to the major depression from which Complainant suffers (CX 9; TR 375), and that, in Dr. Farrand's opinion, Complainant did not magnify the potential causes of his depression. (TR 399-400) Dr. Farrand opined at hearing that Complainant's depression was caused by feelings of loss of control in his life, loss of home, bankruptcy-type issues, inability to find a job, and a lot of guilt and loss of self-worth. (TR 373) The report states Dr. Farrand's opinion that Complainant's depression has not significantly changed since care was initiated.

   The report reflects Dr. Farrand's opinion that Complainant would be unsafe in an employment situation where he would be driving a commercial vehicle due to Complainant's limited attention span and expresses concern that Complainant may not be able to fulfill any employment due to the degree of depression. The Doctor also confirmed this opinion at hearing, where he testified he did not believe the Complainant was capable of working "right now." (TR 375) The Doctor states "I, in fact, believe [Complainant] is having difficulty functioning through the normal activities of daily living at this time." (CX 9)

and then disappointed over a potential job offer (TR 387-88) although, the Doctor testified, he could not place that event in time. Dr. Farrand testified this event did have some negative effect on Complainant, but the Doctor also states Complainant was already suffering from major depression. (TR 389)

   Dr. Farrand's testimony concluded with his stating the prognosis for Complainant was "guarded." (TR 398) He also stated there has been some stabilization of Complainant's depression, that the anxiety has been controlled with medication, and that headache and stomach complaints have been reduced through antidepressants or other specific medications. (TR 397) The Doctor did testify that depression is usually of a finite period. In the end, however, the Doctor stated he did not "foresee, in the short term anyway, this [Complainant's] depression resolving." (TR 398)

do. However he did not anticipate the impact to whistle-blowing. He was naive about the ramifications of his actions and ultimately unable to deal with the snowballed accumulative effect....

Mr. Michaud's high anxiety, poor concentration, feelings of hopelessness, helplessness, shame and past unsuccessful attempts at seeking employment all had an adverse affect on his ability to gain employment during the time that he participated in treatment with me."

relationships in that he is uncomfortable and anxious around other people. He has lost ambition, has not been able to enjoy previously enjoyed activities and reports memory and concentration difficulties. There is also reported sleep disturbance, diminished appetite and loss of libido. Fortunately there is no suicidal ideation and he has no past history of attempts and there is no complicating alcohol or substance abuse.

(CX 8, Dr. Garnett's evaluation at p. 3) Doctor Garnett then rendered a diagnosis of "major depression, single episode, moderate, without psychotic features" and listed stressors as "fired from job, unable to find new employment, financial constraints, pending legal suits." (Id.)

   At hearing, Ms. Palmer testified that, in her opinion and based upon Complainant's self-reports, Complainant was not capable of working at any job during the time he was treating with Ms. Palmer. (TR 345-46) She is, however, not able to form an opinion as to the date Complainant's depression rendered him incapable of working. (TR 353-54) Nor was she able to determine a date on which Complainant first started to suffer from major depression. (TR 364) Ms. Palmer admits that work would have been therapeutic in some settings, but also stated that Complainant was incapable of incorporating daily exercise into his daily activities. Complainant, Ms. Palmer states, felt he needed to be home to protect his family as the world crumbled around him. (TR 347)

   The Supreme Court has held that "absent special circumstances, the rejection of an employer's unconditional job offer ends the accrual of potential back pay liability." Ford Motor Co. v. EEOC, 458 U.S. 219, 241 (1982); Lewis Grocer Co. v. Holloway, 874 F.2d 1008, 1012 (5th Cir. 1989). The rejection of an unconditional offer of reinstatement, however, will not toll back pay liability where a special circumstance or valid reason exists for refusal of that offer. Naylor v. Georgia-Pacific Corp., 875 F. Supp. 564, 581 (N.D. Iowa 1995). The issue, therefore, becomes whether an objective, reasonable person would have refused the offer of reinstatement. See DRO, at p. 8 (Citing Morris v. American Nat'l Can Corp., 952 F.2d 200, 203 (8th Cir. 1991); Fiedler v. Indianhead Truck Line, Inc., 670 F.2d 806, 808 (8th Cir. 1982)). The burden of proving an offer of reinstatement was made and that rejection of it was objectively unreasonable rests squarely on the shoulders of Respondent. See Smith v. World Ins. Co., 38 F.3d 1456, 1465 (8th Cir. 1994). See Also Maturo v. National Graphics, Inc., 722 F. Supp. 916, 928 (D. Conn. 1989).

   Respondent has opposed the claim for back pay on the grounds that Complainant failed to mitigate his damages after discharge, that his back pay is limited due to his rejection of an offer of suitable work, and that his back pay is limited to the period ending with the first hearing. It is, however, possible for this Judge to decide two of these arguments almost as briefly

as those arguments were raised and argued. See Respondent's Brief, at pp. 9-10, sections A and C (lacking in citation to case law and/or reference to testimonial or other evidence). I find and conclude that there is no validity to Respondent's first and third arguments.

   A cursory review of the controlling authority indicates that Respondent bears the burden of proving that Complainant failed to mitigate his damages. See Lansdale v. Intermodal Cartage Co., Ltd., 94-STA-22 (ALJ 3/27/95), at p. 26 (adopted by the Sec'y 7/26/95). To meet this burden, a respondent must establish that comparable jobs were available during the interim period and that a complainant failed to make reasonable effort to find new employment that was substantially equivalent to his or her former position and suitable to a person of his or her background and experience. Id. A complainant will be found to have breached his or her duty to mitigate damages only upon a determination that he or she showed a willful disregard for his or her own financial interest. Id. at p. 27 (Citing Hufstetler v. Roadway Express, 85-STA-8 (Sec'y 8/21/86), aff'd sub nom., Roadway Express v. Brock, 830 F.2d 179 (11th Cir. 1987); Polewsky v. B&L Lines, 90-STA-21 (Sec'y 5/29/91)). See Also Lansdale, (Sec'y 7/26/95), at p. 3.

   Respondent argues "[t]he record evidence shows that [Complainant] made a few brief efforts to find other work and then more or less gave up and rode out his unemployment compensation." (Respondent's Brief, at p. 19) This Judge, however, has reviewed uncontroverted evidence that Complainant applied for employment within and outside of the trucking industry between the time of termination and February 1995 and that Complainant filled out three applications per week between January and June 1994, as was required by unemployment. I might add that these statements are verifiable or, as Respondent would have it, impeachable. Nevertheless, there is no evidence of record so impeaching the testimony of Complainant, which testimony is corroborated by testimony from Complainant's wife and, to some extent, all three treating medical professionals.

   I decline to engage in a lengthy discussion of Respondent's suggestion that back pay liability ends as of the last day of the hearing in this case because it is wholly unsupported by law. Suffice it to say, such a position would contravene the remedial purpose of the STA by allowing a respondent to forestall a complainant's recovery of damages by seeking appeal and, at the same time, allow respondent to cut-off the accrual of damages for which it may ultimately be held liable. Indeed, there is authority which indicates back pack liability continues until a complainant is reinstated or declines the offer of reinstatement. See Creekmore v. ABB Power Sys. Energy Services, Inc., 93-ERA-24 (Dep. Sec'y 2/14/96), at p. 20.

   I shall now focus my attention on Respondent's argument that its unconditional offer of reinstatement cuts off its back pay liability. Respondent produced evidence at hearing that an offer of reinstatement was extended to Complainant on or about May 1, 1995. (RX 12; TR 379) Respondent then argues "[Complainant] declined the unconditionally offered job, not because of any 'special circumstance,' but because of his unfounded subjective fears." (Respondent's

Brief, at p. 10) I find Respondent's statement to be conclusory and of no meaningful assistance to this Judge in determining the issue at hand.

   Complainant submits an award of back pay from date of termination through date of final judgment is appropriate because of the existence of special circumstances justifying Complainant's rejection of the offer of reinstatement. Complainant makes some reference to the offer being less than bona fide. (Complainant's Brief, n. 3) Embarking upon an examination of Respondent's good faith or lack thereof, however, would be altogether academic given the fact that I find and conclude Complainant was disabled from accepting any such offer of reinstatement in the first instance.

   In this regard, I have found the Eleventh Circuit's decision in Lewis v. Federal Prison Industries, Inc., 953 F.2d 1277 (11th Cir. 1992), to be most instructive. In Lewis, there was evidence from plaintiff's treating psychiatrist and physician that both advised plaintiff not to accept the offer of reinstatement. Id. at 1278. The Court held that the employee reasonably refused the offer of reinstatement where he declined the employment because he was suffering from depression in response to the employer's discriminatory acts. In addition, there was uncontradicted evidence from the same psychiatrist that plaintiff could not return to work without suffering a return of the symptoms that so debilitated him in the first place. The Court then stated the most important factor in determining to award reinstatement or front pay was the evidence that the discrimination endured by plaintiff "in effect disabled" him. Id. at 1281 (emphasis in original).

   This Judge finds and concludes that Complainant's rejection of Respondent's offer of reinstatement was objectively reasonable based on the testimony of Complainant himself and based on the highly persuasive testimony of Dr. Farrand. I find it difficult to imagine reasonable minds disagreeing as to whether a reasonable person, who is in a precarious mental state, on anti-depressant medication, and undergoing counseling on a weekly basis, would completely discard the advice of a treating physician and return to work for the employer alleged to have caused this condition. The result achieved may be different were there evidence that a complainant never sought the advice of a treating physician and simply relied on his or her own personal, unskilled opinion that he or she was not able to return to work for the allegedly discriminating employer. This, however, is not the case at hand.

   I pause to note that there is some evidence that Complainant was not sure whether the offer of reinstatement was an offer to return to Respondent's employ as a truck driver or in some other capacity. (TR 266) Indeed, there is some evidence that Dr. Farrand also did not know the particulars of the offer of reinstatement. (TR 381) I hasten to add, however, that this factor is not determinative of the outcome. Dr. Farrand also stated that he held the opinion that Complainant should not return to work for Respondent employer at the time of the offer of reinstatement, regardless of the capacity. (TR 381)

   Furthermore, I have also given consideration to Dr. Farrand's testimony that Complainant was capable of working in February 1996, albeit in a modified environment. Whether such an ideal position was available at that time was left completely unaddressed by Respondent at hearing. Respondent failed to seize upon its opportunity at hearing to present evidence, as it was its burden to do, as to available, comparable jobs and/or available jobs for which Complainant was qualified.

   Based upon this evidence, I find Complainant is entitled to an award of back pay from the date of his termination, December 23, 1993 through and including the date on which the Respondent pays such an award to Complainant. Respondent is not entitled to have its liability cut off at the date of its offer of reinstatement because I find and conclude that an objective, reasonable person would not have accepted Respondent's offer based on the advice of a treating physician, who advised that such a position would be too stressful for Complainant and that such a position would not make good psychological sense.

Complainant not to return to work in that environment for health reasons. Beyond these medical issues, there is also the fact that the management person who terminated Complainant was also the same person whom Complainant was supposed to contact in regards to reinstatement and the fact that the offer of reinstatement was not extended until a year and a half after termination. These facts necessarily influence my decision to award front pay, rather than reinstatement, because they indicate the environment to which Complainant could anticipate returning and, indeed, inferentially verify Complainant's concerns about returning to Respondent company in an atmosphere where the employer might be trying to get rid of him.

   I have also been guided by Dr. Farrand's testimony as to the vicious cycle in which the Complainant is caught and the sort of modified job that would be necessary to ease Complainant back into a stable mental state. (TR 391-92) In addition, the Doctor stated he was unable to establish how long it would take for Complainant to complete this rehabilitation, if you will, and return to regular employment. It is also of significance that both Dr. Farrand and Ms. Palmer were of the opinion that Complainant was not responding well to the anti-depressant medication and therapy sessions and that he continued to suffer from major depression.

   Accordingly, I find and conclude that a front pay award for a period of two years is justified by the medical evidence of record. I have modified Complainant's request for three years front pay because of the potential for windfall inherent with the remedy.

   Complainant is entitled to an award of health, pension and other related benefits which are terms, conditions and privileges of employment from the date of the discriminatory layoff until reinstatement or declination of an offer of reinstatement. See Creekmore, supra, at pp. 21-22 (Citing 42 U.S.C.A. §5851(b)(2)(B)). Such compensable damages include medical expenses incurred because of termination of medical benefits, including premiums for family medical coverage. Id. See Also Crow v. Noble Roman's Inc., 95-CAA-8 (Sec'y 2/26/96).

   At the February 1996 hearing, the parties stipulated Complainant would have benefitted from health insurance having a net value to Complainant of $369.00 per month or $85.15 per week beginning January 1, 1994 and continuing until December 1995. It was further stipulated that the net value of such health insurance rose to $399.00 per month or $92.08 per week beginning January 1996 and continuing to present.

   Accordingly, I find and conclude that Complainant is entitled to an award of these medical benefits and the parties have already calculated the health insurance benefit amount into their stipulation regarding back pay. (See Stipulation Number 3(e)) In addition to those amounts, Respondent shall reimburse Complainant for any costs Complainant personally incurred relative to health care which would have been covered under the Respondent's health care program.

1/17/95), at p. 9 (Citing Deford v. Secretary of Labor, 700 F.2d 281, 283 (6th Cir. 1983) (under analogous provision of the ERA); Webb v. City of Chester, Ill., 813 F.2d 824, 836-37 and nn. 3,4 (7th Cir. 1987)). Where appropriate, a complainant may recover an award for emotional distress when his or her mental anguish is the proximate result of respondent's unlawful discriminatory conduct. See Bigham v. Guaranteed Overnight Delivery, 95-STA-37 (ALJ 5/8/96) (adopted by ARB 9/5/96). See Also Blackburn v. Metric Constructors, Inc., 86-ERA-4 (Sec'y 10/30/91). Complainant bears the burden of proving the existence and magnitude of any such injuries; although, as a caveat, it should be noted that medical or psychiatric expert testimony on this point is not required. Bigham, 95-STA-37 (ALJ 5/8/96), at p. 14; Lederhaus v. Paschen, 91-ERA-13 (Sec'y 10/26/92), at p. 7 (Citation Omitted). The amount of the compensatory award, if any, clearly depends upon such factors as the seriousness of the emotional ramifications and the credibility and/or substantiation of evidence presented on the issue.

under consideration as high. I also decline to award such an amount based on my finding that the evidence of record fails to establish emotional ramifications sufficiently serious to warrant such an award.

   Complainant testified that his Doctor and wife have stated his relationship with family has changed, and Complainant acquiesced "I guess it's got to be true." (TR 181) Complainant's wife of six years, Mrs. JoAnne Michaud, also testified at hearing. Mrs. Michaud described her husband's personality in 1982 as "energetic...he liked going just for rides...he used to be a lot of fun...he was quite happy, he was quite a lot of fun." (TR 296) She also recounted a 1984 car accident which left Complainant unemployed until 1986 and Mrs. Michaud observed no personality change. Mrs. Michaud then proceeds to describe Complainant between 1986 and 1993 as "romantic still." (TR 298)

   On the one hand, Mrs. Michaud testified she noticed changes about a year after Complainant's firing when Complainant started getting moody and snappy, when he did not want to do anything and did not want to leave the couch, and when he would leave the house to look for a job and come home even worse. (TR 302-303; 307; 327) Mrs. Michaud stated she could not talk with her husband anymore and that when they were in the same room they would usually fight, so she did not want to remain in the same room with him. The Michauds stopped sleeping in the same room and Mrs. Michaud testified that she considered leaving her husband. Mrs. Michaud attributed the cause of marital problems to "[Complainant] not working" and to the fact that "[Complainant] stressed himself out very much over that." (TR 310)

   On the other hand, Mrs. Michaud testified Complainant was working or sleeping during 1993 and she hardly spoke to him at all. According to Mrs. Michaud, Complainant slept most of the day when he was not working and he was also getting headaches and was exhausted. (TR 318) In fact, Mrs. Michaud states that although she knows her husband was fired, she did not know why and she never asked why. (TR 325) Furthermore, Mrs. Michaud only knows her husband went out looking for work - she knows no other particulars of his job search nor does she know why he gave it up. (TR 325; 327)

   It is apparent from this testimony, and clear from counsel's cross-examination of Mrs. Michaud, that the purported impact on Complainant's marital relationship is questionable. Mrs. Michaud herself states that she did not notice a change in her husband's personality until approximately a year after his termination from Respondent, yet it is also obvious from her lack of knowledge about Complainant's firing and subsequent job search that communication between the two may not have been ideal during that intervening period.

   While this Judge does find Complainant's claim for compensatory damages to be somewhat enhanced, I also find valid basis for a modified award of such damages. Furthermore, it is important to note that this Judge is also of the opinion that the evidence in this case justifies an award somewhat higher than the aforementioned cases. There is concrete evidence in the form of

three Doctors' reports which substantiate and lend credulity to the testimony of Complainant and Mrs. Michaud in regards to Complainant's extreme depression. Specifically, this Court is guided by the medical report of Ms. Delphine Palmer, LCSW, which report is validated by the consulting report of Dr. Garnett, and the report of Dr. Farrand. All three of these reports, which have been thoroughly summarized above, indicate Complainant's presentation with complaints of symptoms suggestive of depression. This Judge finds it significant that not one of these three medical professionals casts doubt about the veracity of Complainant's complaints and that Doctor Farrand actually administered an objective test to assist in the assessment of Complainant's condition.

   This Judge cannot reconcile Respondent's attempt to discredit Complainant's claims as to the psychiatric repercussions of Respondent's acts with Respondent's failure to offer contravening medical evidence. Even if I were to accept Respondent's argument and discredit Complainant's self-reports of stress, anxiety and other symptoms common to depression, the fact remains that I have the well-reasoned and well-supported medical reports of examining medical professionals. Indeed, Ms. Palmer stated at hearing that Complainant's self-report and information given over time "pretty much stick to the same themes or topics." (TR 366)

terminate Complainant days before Christmas and while Complainant was awaiting the arrival of his first child, impairment to Complainant's marital relationship and financial situation, and the aggravation of physical conditions such as recurrent headaches and stomach pain and the onset of chest pain due to Complainant's psychological state have played a role in granting these damages, this award is based, in particular, on the extreme degree of Complainant's medically diagnosed depression and all of its attendant symptoms, the unlikelihood of that depression resolving in the near future, and the disabling effect that depression had and continues to have on Complainant's ability to seek other employment.

A. Hourly Rate

most reasonable in light of the fact that Attorney Butterfield's contemporaries have attested that the requested rate is within or below the prevailing rate in Maine.

B. Hours Expended

   Complainant's counsel is entitled to recover for those hours reasonably expended on the pending matter. Complainant's counsel requests reimbursement for a total of 386.30 hours spent on this matter. In support thereof, counsel has submitted an itemized statement for services rendered with corresponding time spent. See Complainant's Brief, Exhibit 2. The period of representation extends from January 10, 1995 to April 30, 1997 - a period of roughly two (2) years and three and a half (3) months. Within this time frame, counsel conducted and completed discovery, prepared for and participated in the initial hearing before the Office of Administrative Law Judges in which the determination was adverse to Complainant, successfully convinced the Board to find a violation of the STA had occurred, and continued to represent Complainant during remand for a determination of damages.

   Respondent has proposed I disallow certain services requested on the basis that the services are co-mingled with non-chargeable time, i.e., time spent assisting Complainant in matters not related to his STA claim. I concur to some extent.    I find and conclude that Attorney Butterfield's determination of whether to represent Complainant in this STA matter is compensable as it relates to Complainant's STA claim. In this regard, I have concluded it is proper to allow the fee petition for those services rendered on January 10th and 17th, 1995. I do, however, find a request of 4.4 hours for that determination is unreasonable. This Judge concludes that 1.5 hours would have been a sufficient, reasonable amount of time for Attorney Butterfield to determine whether to represent Complainant and, accordingly, I reduce Attorney Butterfield's fee petition by 2.9 hours.

   There are also a number of entries which I do not have the authority to award. These entries pertain to counsel's consideration of other possible claims and entries pertaining to mortgage, foreclosure and bankruptcy issues. Specifically and upon behest of Respondent, I have eliminated the following entries from counsel's fee petition:

     Date of Entry  Time Not Allowed

       11/08/95             .40
       11/09/95             .25
       06/07/96             .30
       08/23/96             .70
       10/02/96             .10(partially allowed for other
identified compensable services)
       10/21/96             .30
       12/30/96             .30
       01/14/97             .25
       01/22/97             .20
       01/24/97             .30
       02/28/97             .30
       03/04/97             .45(partially allowed for other
identified compensable services)
       03/11/97             .20
       04/09/97            3.60
       04/14/97             .30
       04/23/97             .10

       TOTAL         =     8.05

   I reject Respondent's argument that other services be disallowed as "fruitless settlement" negotiations or "wasted internal communications." It remains that even if these services were 'fruitless' or 'wasted,' they were rendered in connection with the resolution of this matter and thus are compensable.

   Respondent has also objected to Complainant's attorney requesting a fee at a rate of $115 or $120 per hour for the time spent traveling and serving subpoenas and suggests a reduced rate of $25.00 per hour. I agree with Respondent on this point and will reduce the rate charged for this service to $25.00 per hour. This Judge does not deem it reasonable to compensate Complainant's attorney at an attorney's hourly rate for a service that does not require lawyerly skills and is a function that could be performed by certified mail or by any person over 18 years of age. See 29 C.F.R. Part 18.24(a). I do, however, find that travel time to and from the actual hearing of this matter in February 1996 is compensable at an attorney's rate.

   In addition, Respondent argues this Judge should reduce the number of hours billed for certain services as excessive. Respondent directs my attention to 69.30 hours billed for Complainant's post-trial brief, 38.90 hours billed for brief on appeal, and 8.70 hours billed for motion for modification. I am, however, not able to find these hours so unreasonable as to warrant a reduction.

   Complainant is entitled to pre-judgment interest on his back pay award, calculated in accordance with 26 U.S.C. §6621. Complainant is not entitled to interest on his attorney fee award, Blackburn v. Metric Constructors, Inc., 86-ERA-4 (Sec'y 10/30/91), at p. 12-13, aff'd sub nom., Blackburn v. Martin, 982 F.2d 125 (4th Cir. 1992), nor does interest accrue on the compensatory damage award. Creekmore, supra, at p. 25 (Citing Lederhaus v. Paschen, 91-ERA-13 (Sec'y 10/26/92), at p. 16; McCuistion v. Tennessee Valley Auth., 89-ERA-6 (Sec'y 11/13/91), at p. 24).

   Based upon the foregoing findings of fact, conclusions of law and upon the entire record, I RECOMMEND Complainant, Robert Michaud, be awarded the following remedy:

   Respondent, BSP Transport, Inc., shall remit to Complainant, Robert Michaud,

1. Back pay in the amount of $66,204.38 for the period of December 23, 1993 through December 31, 1995;

2. Back pay at the rate of $655.14 per week for the period of January 1, 1996 through the date Respondent remits payment of this award;

3. Interest on the entire back pay award, calculated in accordance with 26 U.S.C. §6621;

4. Front pay in the amount of $68,134.56 (which is $655.14, the stipulated weekly compensation rate, times 104 weeks);

5. Reimbursement of those medical costs as identified in part IV of this Recommended Decision and Order;

6. Compensatory damages in the amount of $75,000.00; and

7. Attorney's Fee in the amount of $48,838.39 (expenses included).

   It is FURTHER RECOMMENDED that

1. Respondent shall immediately expunge from Complainant's personnel records all derogatory or negative information contained therein relating to Complainant's protected activity and that protected activity's role in Complainant's termination;

   ---

   [Page 24]

2. Respondent shall designate an individual within Respondent's organization as the person to be contacted as Complainant's employment reference and this individual shall provide an employment reference free from reference to Complainant's protected activity; and

3. Respondent shall post a written notice in a centrally located area frequented by most, if not all, of Respondent's employees for a period of thirty (30) days, advising its employees that the disciplinary action taken against Complainant has been expunged from his personnel record and that Complainant's complaint has been decided in his favor.

       DAVID W. DI NARDI
      Administrative Law Judge

Boston, Massachusetts
DWD:jw:

NOTICE: This Recommended Decision and Order and the administrative file in this matter will be forwarded for review to the Administrative Review Board, U.S. Department of Labor, Frances Perkins Building, Room S-4309, 200 Constitution Avenue, N.W., Washington D.C. 20210. The Administrative Review Board is the authority vested with the responsibility of rendering a final decision in this matter in accordance with 29 C.F.R. Part 24.6 pursuant to Secretary's Order 2-96, 61 Federal Register 19978 (May 3, 1996).