After receiving RX 1, counsel for Mrs. Leveille filed a response in which questions were raised about the impact of Respondent's request that OPM remove adverse matter, including whether OPM had fully complied with the request. On July 15, 1997 I issued Post-Remand Order No. 13 in which I gave the parties the opportunity to submit evidence regarding this subject. On September 15, 1997 Mrs. Leveille submitted the unsworn statement of Paul Katz, who states that adverse comments remain in OPM's records (CX 68). RX 1 and CX 68 are received in evidence.

II. Contentions of the Parties

   Complainants contend that Mrs. Leveille should be awarded compensatory damages for past and future emotional distress, related past and future medical services, damage to her marriage, impairment of her earning capacity, damage to her professional reputation, and reimbursement for costs and expenses including attorney's fees. (Complainants' Position on Damages and Remedies, pp. 19-29). Complainants propose the award of the following compensatory damages for Mrs. Leveille:

• $500,000 for past emotional distress
• $500,000 for future emotional distress
• $529.28 for past medical services
• $50,000 for future medical expenses
• $250,000 for harm to the marriage

No specific monetary amount has been proposed for injury to Mrs. Leveille's earning capacity or her professional reputation.

   Complainants also claim that Mr. Leveille is entitled to damages for emotional distress, damage to professional reputation, and loss of consortium. Complainants seek $250,000 in compensatory damages for Mr. Leveille. (Id., p. 29)

   The issues to be resolved herein are:

1. Is Mr. Leveille entitled to damages?

2. Is Mrs. Leveille entitled to damages for emotional distress and loss of professional reputation and, if so, the extent of such damages?

3. Are exemplary damages appropriate?

4. What is an appropriate attorney's fee for Complainants' counsel?

IV. Findings of Fact and Conclusions of Law

to Mr. Leveille, even if he is not a prevailing party. (Complainants' Position on Damages and Remedies, p. 13) However, again, Complainants have provided no legal authority supporting their propositions that loss of consortium is an appropriate whistleblower's remedy or that a non-prevailing party is entitled to such damages. For these reasons, I find that Mr. Leveille is not entitled to an award of damages for loss of consortium.

   Since I have found that Mr. Leveille is not a prevailing party, the term "Complainant" will hereafter refer to Mrs. Leveille only.

   Complainant does not contend she is entitled to damages for lost wages per se. Indeed, Complainant does not allege that the termination of her employment was retaliatory. And the Secretary found that Mrs. Leveille's termination was not related to her protected activity. (Secy. D&O at 8) For the foregoing reasons, Mrs. Leveille is not entitled to damages for lost wages or for front pay.

    A. Emotional distress

(Secy. D&O at 21) According to OPM, "Other agencies requesting [Complainant's] investigative file will receive a copy unsanitized. The retention schedule for [the] investigative file is 15 years." (CX 57)

   The Secretary may order violators of whistleblower statutes to pay compensatory damages to the victims of their discriminatory acts. 29 C.F.R. § 24.6(b)(2); 15 U.S.C. § 2622(b)(2)(B) Compensatory damages are appropriate for intangible injury, such as mental anguish, when the economic impact cannot be quantified. Blackburn v. Martin, 982 F.2d 125, 132 (4th Cir. 1992). In order to recover, a complainant must show that he or she experienced mental and emotional distress and that it was caused by the violation. Id. at 131; Carey v. Piphus, 435 U.S. 247, 263-64 and n.20 (1978). The testimony of medical or psychiatric experts is not necessary, but it can strengthen a complainant's case for entitlement to compensatory damages. Thomas v. Arizona Public Service Co., 89-ERA-19, (Sec'y Sept. 17, 1993), slip op. at 27-28.

   In the instant case, there is ample evidence that Complainant experienced emotional pain and suffering and mental anguish that warrant entitlement to compensation. The record reveals that Complainant suffered severe anxiety attacks, shortness of breath, and dizziness because of the stress caused by Respondent's acts of blacklisting. (TR 98) Complainant testified she felt that she "wasn't the same person", that she could not concentrate, stopped talking to friends, and no longer enjoyed "anything in life". (TR 96, 98) Further, Complainant experienced distress over Respondent's negative comments to DRC. (TR 93; CX 40, 41) Complainant also believed that her husband failed to "protect her" from Respondent's blacklisting, and that she "needed to ask...for a divorce". (TR 95-96)

   Complainant sought professional counseling from a psychologist, Dr. Edwin Carter, whose testimony at the hearing corroborated Complainant's contentions. Dr. Carter characterized Complainant's condition as "one of the worst cases of a negative reaction", and diagnosed depressive disorder dysthmia, which he stated consists of panic attacks and physical manifestations of stress. (TR 148-49) Dr. Carter opined that these symptoms were the direct result of Respondent's violative conduct. (TR 165) Further, Dr. Carter testified that the "employment problems" with Respondent created constant marital tensions that may have "done the marriage in". (TR 155) Finally, Dr. Carter stated that Complainant has suffered permanent emotional effects that will require future counseling or therapy. (TR 158)

   Based on the foregoing, I find that Complainant is entitled to an award of damages for emotional stress. The next question is how to measure these damages: Complainant requests $500,000 for past distress, $500,000 for future distress, $50,000 for future medical expenses and $250,000 for harm to her marriage.

   An important standard for assessing whether an award for compensatory damages is reasonable is "whether the award is roughly comparable to awards made in similar cases." Gaballa v. Arizona Public Service Co. And the Atlantic Group, 94-ERA-9, slip op. at 4 (Sec'y Jan. 18, 1996). Complainant contends that because Dr. Carter's testimony is unrebutted, she is entitled to an award that is significantly higher than in cases in which no expert provided corroboration of injury to the psyche. Although a psychologist's testimony will strengthen a case for entitlement to damages, the damages must be at least in rough accord with awards made in similar cases. See EEOC v. AIC Security Investigations, LTD., 55 F.3d 1276, 1285 (7th

Cir. 1995). The Secretary has awarded compensatory damages in the following amounts for emotional suffering or distress: $10, 000 for mental and emotional distress for discharge - Smith v. Littenburg, 92-ERA-52, slip op. at 7 (Sec'y Sept. 9, 1995); $10,000 for emotional distress from harassment, blacklisting and discharge - McCuistion v. TVA, 89-ERA-6, slip op. at 21-22 (Sec'y Nov. 13, 1991); $25,000 for emotional distress from blacklisting - Gaballa, supra; $40,000 for emotional distress from layoff - Creekmore v. ABB Power Systems Energy Services, Inc., 93-ERA-24, slip op. at 14 (Sec'y Feb. 14, 1996); $50,000 for mental anguish and depression, aggressive and intimidating treatment, and potential damage to reputation - Marcus V. TVA, 92-TSC-5, slip op. at 10 (Sec'y July 3, 1995).

   In Smith v. Littenburg, a psychiatrist testified that the complainant was "depressed, obsessing, ruminating," and "had post traumatic problems". 92-ERA-52, slip op. at 4. The complainant was subsequently awarded $10,000 for emotional distress, ,250 for medical expenses, and up to $10,000 for future psychiatric fees, provided that complainant availed himself of counseling and presented bills to the respondent for payment. Id. at 5. Similarly, in the Gaballa case, Dr. Edwin Carter (the same psychologist whom Complainant relies upon in the instant case) testified that the employment confrontation, the employer's failure to support the complainant, and a subsequent discriminatory reference initiated a process of emotional distress, leading the complainant to view himself as a "pariah". 94-ERA-9, slip op. at 4. In that case the complainant testified that he suffered emotional malaise which affected his marriage. Id. The Secretary awarded $25,000 for mental and emotional suffering, taking into account "prior awards in various cases, [and] the fact that [complainant] ha[d] already received compensation through settlement for part of the emotional suffering caused...." Id. at 4-5.

Guzman v. Western State Bank of Devil's Lake, 540 F.2d 948, 953 (8th Cir. 1976). There is no evidence in the record to suggest that Respondent's retaliatory discrimination went beyond the statutory violation of two instances of blacklisting. Respondent's conduct thus falls short of that present in a number of cases in which exemplary damages were awarded, including those relied on by Complainant. Rowlett v. Anhueser Busch, Inc. 832 F.2d 194, 207 (1st Cir. 1987); Fishman v. Clancey, 763 F.2d 485, 489 (1st Cir. 1985); Keenan v. City of Philadelphia, 983 F.2d 459, 471-72 (3d Cir. 1992). Because I do not find the existence of the requisite state of mind and conduct, I need not decide the question of deterrence.

   Accordingly, exemplary damages are not awarded.

    The Secretary may order a violator to pay "a sum equal to the aggregate amount of all costs and expenses (including attorney's and expert witness fees) reasonably incurred...." 29 C.F.R. § 24.6(b)(3).

   Counsel for Mr. and Mrs. Leveille requests through June 17, 1996, costs of $12,736.07 and an attorney's fee of $58,225.75, calculated as follows:

Attorney   Hours  Rate Per Hour        Lodestar
 
Lead Attorney          178.76          $190                  $35,752.00
(1993-1994)

Lead Attorney           56.55          $225                  $12, 723.75
(1995)

Lead Attorney           13.00          $225                   $3,250.00 
(To 6/17/96)

Associate Attorney      45.00          $100                   $4,500.00

Legal Intern            40.00           $50                   $2,000.00  

   Finally, in a letter dated January 20, 1998, counsel requested the opportunity to submit a supplemental fee application covering services and costs for the period subsequent to June 17, 1996.

   Respondent contends that recovery of an attorney's fee and costs is permissible only for the representation of Mrs. Leveille, as Mr. Leveille is not a prevailing party. I agree.

   Respondent also argues that Mrs. Leveille's attorney's fees should be reduced

to account for time spent on her husband's case. I disagree with that contention. Virtually all of the preparation for Mr. Leveille's case was directly related to the issues involved in the investigation and trial preparation of Mrs. Leveille's case. Both Mr. Leveille and Mrs. Leveille were involved in reporting the same environmental concerns to Respondent during the same period of time. Complainant's counsel also points out that most of Mr. Leveille's testimony related directly to Mrs. Leveille's case. I find that the time spent in preparing Mr. Leveille's case was not duplicative. I further find that the issues and facts involved in the two cases, as well as the preparation to determine and present those facts and issues at hearing were "sufficiently intertwined" to warrant no reduction of the attorney's fee and costs. Hilton v. Glas-Tec Corp., 84-STA-6 (Sec'y July 15, 1986).

   Respondent concedes that the hourly rates requested for the attorneys and law clerks are reasonable. However, Respondent questions the reasonableness of the hourly rate of $200 for travel time to Albany, New York, from Washington, D.C. for the deposition of Lt. Purple. Respondent claims that billing the full rate of $200 per hour for 7 hours is unreasonable, and that the fee should be reduced by 50 percent. Although he does not agree with Respondents objection, Complainant's counsel states that he agrees to accept the $750 reduction. I therefore find that Complainant is entitled to the original amount requested for attorney's fee and costs, less the $750 reduction. Complainant is thus entitled to $57,475.75 for attorney's fee and $12,736.07 for costs, for a total award of $70,211.82 for attorney's fee and costs incurred through June 17, 1996.

   Complainant contends that pre- and post-judgment interest on the attorney fee should be awarded, citing Larry v. Detroit Edison Company, 86-ERA-32 (Sec'y May 19, 1992). In Larry, the Secretary quoted the following language in Nat. Ass'n. of Concerned Vets. v. Sec. of Defense, 675 F.2d 1319, 1328-1329 (D.C. Cir. 1982):

The lodestar fee may....be adjusted upward to compensate counsel for the lost value of the money he would have received resulting from delay in receipt of payment. [T]he hourly rates used in the "lodestar" represent the prevailing billing rate for clients who typically pay their bills promptly. Court-awarded fees normally are received long after the legal services are rendered. No precise formula is available to measure the delay factor. [W]here the hourly rate used in computing the lodestar is based on present hourly rates a delay factor has implicitly been recognized and no adjustment for delay should be allowed.

Id. at 2) The Secretary went on to calculate an adjusted Lodestar at current rates and to compare this with counsel's requested interest additur. Id. at 2. The Secretary found that the requested interest additur was substantially higher than the adjusted lodestar at current rates ($16,138 compared to $12,220), thus he reduced the requested additur by $3,000.

   Respondent raised no objection to Complainant's request for pre-and post-judgment interest. In accord with Larry, I find that Complainant's counsel is entitled to

interest on the award of the attorney's fee, and that the amount of the award will be the lesser amount of either the adjusted lodestar at current rates or the interest additur requested by Complainants. Complainant's counsel will be given the opportunity to submit the appropriate calculations. However, I note that counsel delayed for seven months in submitting his fee application from December 11, 1995, when the Secretary issued his D&O until the application was submitted on July 19, 1996. As the seven-month delay was due to the fault of counsel, he is not entitled to interest during that period.

   Finally, Complainant's counsel will also be given the opportunity to submit a fee application covering the post-June 17, 1996 period of time.

   Daniel J. Leveille's request for damages is DENIED.

   The Complainants' request for exemplary damages is DENIED.

   Respondent New York Air National Guard is ORDERED to pay Marrita M. Leveille the following amounts:

1. $45,000 for past and future emotional distress;

2. $25,000 for past and future damage to vocational reputation;

3. $529.28 for past medical expenses;

4. $10,000 for future medical expenses provided that she obtains future medical treatment for related injury and presents her bills to Respondent for payment;

   It is further ORDERED that Respondent shall pay Complainant's counsel an attorney's fee and costs for the period ending on June 17, 1996 in the amount of $70,211.82.

   It is further ORDERED that Complainant's counsel, within thirty (30) days of the date hereof, may submit (1) an application which sets forth the calculation of the amount of interest to which he is entitled on the fee (excluding the seven-month period described above), and (2) a supplemental application for fees and costs for the period subsequent to June 17, 1996. Respondent shall have fifteen (15) days within which to file an opposition to these submissions.

      Robert D. Kaplan
      Administrative Law Judge

Camden, New Jersey

NOTICE: This Recommended Decision and Order and the administrative file in this matter will be forwarded for review by the Secretary of Labor, Room S-4309, Frances Perkins Building, 200 Constitution Avenue, N.W., Washington, D.C. 20210. The Administrative Review Board has the responsibility to advise and assist the Secretary in the preparation and issuance of final decisions in employee protection cases adjudicated under the regulations at 29 C.F.R. Parts 24 and 1978. See 55 Fed. Reg. 13250 (1990).