The projected two year rehabilitation period supported by the evidence of
record rightfully begins on the day the hearing closed, February 22, 1996, and thus the front pay
period ends on February 21, 1998.
Payment of future damages should be discounted to present value.
E.g., Doyle, slip op. at 8 and Price v. Marshall Erdman & Assoc ., 966 F.2d 320,
322 (7th Cir. 1992). In this case, only a few months will elapse between the date of this order
and the end of the front pay period. For that reason, we will not order that the front pay award be
reduced to present value.
[Page 7]
Medical Benefits
The ALJ found that Michaud is entitled to an award of medical expenses
incurred because of the termination of medical benefits upon Michaud's discharge. R.D.O.R. at
16. The parties stipulated that Michaud would have benefitted from health insurance having a
net value of $369 per month and increasing to $399 per month. Id . The ALJ ordered
BSP to pay the stipulated amounts to Michaud and we affirm that order.
The ALJ also ordered BSP to reimburse Michaud for any health care costs
incurred for himself or his family that would have been covered under BSP's health insurance
program. R.D.O.R. at 16. BSP objects to paying these health care costs for Michaud or his
family members because no such costs have been presented to BSP or proved in the record and
these payments would be a double recovery in view of the net value of the health insurance
premiums that BSP has been ordered to pay. Resp. Br. at 10-11. We agree.
With the exception of the health care costs associated with diagnosing and
treating Michaud's depression, the award of payment of Michaud's and his family's actual
medical expenses would constitute a double recovery. See Moyer v. Yellow Freight Sys., Inc.,
Case No. 89-STA-07, Sec. Fin. Dec. and Ord., Sept. 27, 1990, slip op. at 8-9 (finding that it
was inappropriate to require the respondent to reimburse the complainant for his medical
expenses and also require payment of health and welfare fund premiums and ordering only
payment of medical expenses incurred), rev'd on other grounds sub nom. Yellow Freight
Sys. v. Martin, 954 F.2d 353 (6th Cir. 1992). Since we have ordered BSP to pay the
value of health insurance premiums, we will not order it to pay Michaud's family medical
expenses.
Finally, the ALJ ordered BSP to reimburse Michaud for any health care
costs associated with the diagnosis and treatment of his depression, including counseling,
"regardless of whether that care and treatment would have been covered" by BSP's
health insurance program. R.D.O.R. at 16. Since we have found that BSP's wrongful conduct
caused Michaud's depression, we agree that BSP shall be required to reimburse Michaud for all
of the medical expenses concerning his depression, to the extent Michaud paid these medical
costs himself.
BSP shall afford Michaud a reasonable amount of time to provide
documentation of any out of pocket expenses for diagnosis and treatment of his depression,
whether or not those expenses would have been covered by BSP's health insurance program.
Compensatory Damages
The STAA provides that upon finding a violation, the Secretary
"shall order the [respondent] to pay..... compensatory damages, including back pay"
to the complainant. 49 U.S.C.A. §31105(b)(3)(A). BSP contends that the phrase,
"compensatory damages, including back pay" does not include damages for
[Page 8]
emotional suffering, psychic injury, and medical expenses, but rather "covers only back
pay (i.e., lost wages, salary, or commissions), and (2) other employment-related forms of
compensation (i.e. , fringe benefits, vacation pay, bonuses, sick pay, disability benefits,
etc.)." Resp. Br. at 12-13.
We believe that the statutory language is not so limited. The common
meaning of the word "compensatory" is "serving to compensate; affording
compensation." The American Heritage Dictionary of the English Language,
Second College Edition, 1976. In turn, "compensate" is defined: "l. To
make up for or offset; counterbalance. 2. To make equivalent or satisfactory reparation to;
recompense or reimburse." Id . The common meaning of compensatory includes
both back wages as well as damages for pain and suffering.
Moreover, the Secretary and the Board consistently have held that
compensatory damages under the STAA include damages for pain and suffering, mental anguish,
embarrassment, and humiliation. E.g., Nolan, slip op. at 18 and Dutkiewicz v.
Clean Harbors Environmental Svcs., Inc., ARB Case No. 97-090, Final Dec. and
Ord., Aug. 8, 1997 slip op. at 8. Reviewing courts have affirmed Secretarial orders pursuant to
the STAA that required payment of compensatory damages. Eg., Yellow Freight System, Inc.
v. Reich, 38 F.3d 76, 80 (2d Cir. 1994) and Yellow Freight System, Inc. v. Martin,
983 F.2d 1195, 1198 (2d Cir. 1993).
BSP also challenges the compensatory damages award recommended by
the ALJ on the ground that the discharge did not cause Michaud's depression, which arose after
Michaud was rejected for employment by another employer some fourteen months after the
discharge. Resp. Br. at 15. Like the ALJ, we find that the evidence establishes that BSP's
discriminatory action was a proximate cause of Michaud's depression. The testimony and reports
of Michaud's treating physician and the licensed clinical social worker who provided therapy,
and the written report of a consulting psychiatrist, all agree that Michaud suffers from major
depression as a result of BSP's unlawful discharge. CX 8 at 2, 22; CX 9 at 2; T. 343-345, 375.
BSP submitted no evidence to rebut this evidence of causation. The rejection for employment by
a different employer does not break the chain of causation, since BSP's discriminatory discharge
was the reason that Michaud was seeking a job.
The evidence shows that prior to the discharge, Michaud had substantial
savings, owned a house, had good credit, and a stable financial position. T. 171, 181. Michaud
began defaulting on payments in December 1994, T. 171, after BSP's unlawful action. Since that
time, Michaud lost his house through foreclosure, his savings, and his ability to obtain credit, and
has received public assistance. T. 181. We affirm the award of $75,000 in compensatory
damages for the reasons given by the ALJ. R.D.O.R. at 17-22.
Attorney's Fee and Expenses
BSP does not object to the hourly fee claimed by Michaud's attorney, but
[Page 9]
rather to a few specific items. With one minor exception, we affirm the ALJ's implied finding
that the challenged items were reasonable in light of the attorney's experience and the complexity
of the case.
We approve the $120 hourly rate for the attorney's travel time (45 minutes
each way) to and from the hearing. See R.D.O.R. at 25. We find that the number of
hours charged for preparing the post-trial brief is not excessive in light of the length of the record
and complexity of the case. Likewise, we approve as reasonable the number of hours charged for
preparing Michaud's appeal brief. We agree, however, that the 8.7 hours charged for preparing
Complainant's motion for modification is excessive in light of the brevity of the motion and
accompanying memorandum, and allow 5.0 hours as reasonable. Accordingly, we reduce the
attorney's fee award by $444 ($120 X 3.7 hours).
We disagree with BSP's contention that the charges for photocopies and
postage are included in "counsel's overhead reflected in counsel's hourly rate."
Rather, under the STAA, we separately award these expenses. where documented. E.g.,
Moyer, slip op. at 40-41.
Order to Expunge
BSP objects to the order to expunge from Michaud'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" because it
is vague and Michaud has not identified any specific negative documents that should be
removed. This order requires BSP to remove from Michaud's personnel records any documents
that indicate that Michaud was discharged, since the discharge was unlawful. We affirm the
order as sufficiently clear and will not place the burden on Michaud to identify specifically the
documents.
On the basis of the passage of time since Michaud's 1993 discharge, the
company objects to the order to post written notice advising that the disciplinary action taken
against Michaud has been expunged and that Michaud prevailed on this complaint. This is a
standard remedy in discrimination cases that notifies a respondent's employees of the outcome of
a case against their employer. We affirm the order.
ORDER
Respondent shall pay immediately to Complainant:
1. Back pay/front pay in the amount of $66,204.38 for the period of
December 23, 1993 through December 31, 1995;
2. Front pay at the rate of $655.14 per week for the period of January 1,
1996 through February 21, 1998;
[Page 10]
3. Prejudgment interest on the back pay/front pay award, calculated in
accordance with 26 U.S.C. §6621;
4. The net value of health insurance of $85.15 per week for the period
of January 1, 1994 through December 31, 1995, and of $92.08 per week for the period of January
1, 1996 through February 21, 1998; and
5. Compensatory damages in the amount of $75,000.00.
In addition, Respondent shall:
6. Pay to Complainant's attorney an attorney's fee and costs totaling
$48,694.39;
7. Afford Complainant a reasonable amount of time to provide
documentation of his out of pocket expenses for health care associated with the diagnosis and
treatment of his depression, whether or not these expenses would have been covered under BSP's
health insurance program, and shall promptly pay Michaud such documented health care costs.
8. 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;
9. Designate an individual within Respondent's organization a's 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
10. 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.
SO ORDERED
DAVID A. O'BRIEN
Chair
KARL J. SANDSTROM
Member
JOYCE D. MILLER
Alternate Member
[ENDNOTES]
1 A new ALJ was assigned to the
proceeding on remand because the initial ALJ no longer worked for the Department of Labor.
2 "T" refers to the
transcript of the February 1996 hearing. Other references to the record are "CX" for
Complainant's exhibit, and "RX" for Respondent's exhibit.
3 The ALJ found that since the
declination of the offer was reasonable, it was not necessary to determine if the offer was
bona fide. We do not question the ALJ's logic in this case, but make the distinction
between when back pay ends and front pay begins to clarify the issue for future reference and to
emphasize to employers the advantage of offering reinstatement as soon as possible. Only in
very limited factual circumstances, such as we have here, would an employer's liability for wages
continue after a bona fide offer of reinstatement is made.
4 We are making an assessment of
damages based upon evidence adduced more than a year and a half ago. Michaud could have
avoided this gap in the evidence by joining with BSP in seeking a supplemental hearing. As
noted earlier, the ALJ did not abuse his discretion by not holding a supplemental hearing, but the
ALJ did err in projecting a reasonable interpretation of Michaud's expert's opinion (that it would
take two years for Michaud to be rehabilitated) from the time that opinion was given, off to some
point in the future.