Johnson v. Old Dominion Security, 86-CAA-3 (Sec'y May 29, 1991)

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USDOL/OALJ Reporter
Johnson v. Old Dominion Security, 86-CAA-3 (Sec'y May 21, 1991)

U.S. DEPARTMENT OF LABOR

SECRETARY OF LABOR
WASHINGTON, D.C.

DATE: May 29, 1991
CASE NOS: 86-CAA-3
86-CAA-4
86-CAA-5

IN THE MATTER OF

BRUCE G. JOHNSON,
JOHN J. HERNANDEZ,
MARY ANN BRADLEY,

COMPLAINANTS,

OLD DOMINION SECURITY,

RESPONDENT.

BEFORE: THE SECRETARY OF LABOR

FINAL DECISION AND ORDER

This case arises under the employee protection provisions of the Clean Air Act, as amended (CAA), 42 U.S.C. § 7622 (1988), and the Toxic Substances Control Act, as amended (TSCA), 15 U.S.C. § 2622 (1988).

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Complainants Bruce G. Johnson, John J. Hernandez, and Mary Ann Bradley allege that they were unlawfully discharged by Respondent Old Dominion Security (Old Dominion) in violation of the employee protection provisions of the above statutes. After a hearing, the Administrative Law Judge (ALJ) issued a Recommended Decision and Order (R.D. and O.) upholding the Complainants' claims. The ALJ recommended that the Complainants be reinstated to their former positions with backwages and that an order for compensatory damages, attorney's fees, and costs be entered.

Upon review of the record, I conclude that Respondent violated the employee protection provision of the TSCA. I do not adopt the ALJ's precise legal analysis, employing instead the reasoning set forth at Part II below. I find that the ALJ's factual findings regarding liability generally are supported by the record. I fully agree with and adopt the ALJ's credibility determinations and findings of employer motivation set forth in the R.D. and O. beginning in the third full paragraph of page three and continuing through the second full paragraph of page five. My findings as to damages, costs, and expenses appear at Part III below.

I. Facts

Complainants were employed as security guards by Old Dominion, which is headquartered in Hampton, Virginia. Exh. R-6, p. 4. Old Dominion provides security guard services within the Tidewater area of Virginia and in California at the Naval Ocean Systems Center (NOSC), Point Loma, San Diego, and the Naval Electronics Systems Engineering Command (NAVELEX), U.S. Air Force Plant Pacific Highway, San Diego. Plant 19 is operated by General Dynamics Corporation. Complainant Johnson and Hernandez began work for Old Dominion in November 1983. Complainant Bradley began work in May 1985. All complainants worked at the NAVELEX facility (Air Force Plant 19), in Building 1, between mid-1985 and early 1986. Johnson was employed as the on-site supervisor. Hearing Transcript (T.) 51. Z

A. The Health Complaint

In May 1985, Hernandez began experiencing flu-like symptoms which he believed were work-related. He and a Federal employee with similar symptoms reported and complained about their

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symptoms to Supervisor Johnson in August 1985. Bradley manifested symptoms similar to Hernandez's in August 1985, and Johnson's symptoms commenced in October.¹ Hernandez was examined by a general practitioner in May and again in August 1985, who, after finding levels of toxic chemicals in his blood, T. 125-126, referred him to a medical specialist. Johnson and Bradley similarly were referred to and examined and tested by the specialist. T. 31, 165. Complainants believed that their ill health was caused by electrical transformers that were leaking polychlorinated biphenyls (PCBS),² 2/ floors saturated with PCBS, dust particles from the floors swept up by janitors, and Freon fumes released from a heat treatment machine. T. 59, 124, 166; Exhs. A, B; C. Bradley testified that the Freon fumes were "very strong. We had to keep the door to our office closed, and when I made the rounds it was very difficult. I had to hold my hand over my nose and my mouth to breathe." T. 166.

B. The Inspections and Investigations

Old Dominion and General Dynamics were subject to a number of inspections and investigations. In May 1985, Hernandez filed a complaint with the U.S. Department of Labor, alleging that old Dominion had refused to compensate him properly. T. 108-109. In August 1985, Johnson advised Hernandez that Ronald Maust, owner and operator of Old Dominion, Exh. R-6, p. 4, was preparing to discharge Hernandez for complaining to the Labor Department and because he had become a "headache" by continually challenging old Dominion's compliance with the wage contract.³ T. 109-110 (Hernandez). See T. 99 (Johnson). In late September 1985, Maust telephoned Hernandez at NAVELEX, asking:

A. [W]hat was I [Hernandez] still doing there. . . . He said, "Apparently you have resigned, and the paperwork is in motion to send to Mr. Johnson," some type of paperwork about my resignation, and I told him that "I'm sorry, but you're mistaken. I never did resign."

Q. What was his response when you told him you had no intention of resigning?

A. He said that he didn't know what will happen, that basically I was in limbo, that he didn't know if I was going to be terminated or not.

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T. 110. See also T. 104-105 (Johnson), T. 141 (Hernandez). on November 5, 6, and 9, 1985, Hernandez, Johnson, and Bradley, respectively, filed complaints with the California Occupational Safety and Health Administration (CAL/OSHA), alleging toxic substance contamination. Exhs. A, B, C. Thereafter, CAL/OSHA conducted an inspection, finding no violation of California safety and health standards relating to PCB exposures.

On November 14 and 15, 1985, the U.S. Environmental Protection Agency inspected NAVELEX Air Force Plant 19. EPA found that seven in-service transformers situated in Building 1, Complainants' work station, were leaking and that floor areas were contaminated with PCBs. Exh. I, EPA Complaint and Notice of Opportunity for Hearing, pp. 5-9. Additional instances of leakage from PCB transformers were found in Buildings 3, 4, and 7. Id., pp. 10-12. See id., pp. 2-5, documenting other findings of violation. other government investigations were ongoing at NAVELEX between October 1985 and February 1986. T. 69; Exh. E, R-4.

By memorandum dated November 15, 1985, Exh. R-1, Johnson notified Maust of perceived safety and health hazards at NAVELEX, charged that exposure to contaminants had caused health problems for employees of Old Dominion, civil service workers and contractors; and advised that he had been monitored for PCB exposure and that Old Dominion would be in violation-of OSHA standards if the "test results c[a]me back positive." In November, Maust discussed terminating Hernandez with Johnson, the reason being that Hernandez "had filed another complaint," T. 100, "that Mr. Hernandez was becoming a headache to the company and he [Maust] was tired of him complaining--filing complaints." T. 102.

In early January 1986, Old Dominion received notification of workers' compensation claims filed by Johnson, Hernandez, and Bradley as the result of their health problems at NAVELEX. ALJ Exh. 1, Affidavit of Ronald W. Maust. By letter of January 16, 1986, from a private attorney representing Johnson and Hernandez, Exh. R-2, Maust was notified that Johnson, Hernandez, and other unnamed employees were being exposed to toxic substances at their worksite and that as a result of their exposures they suffered enumerated symptoms. Exh. R-3. By letter of January 34, 1986, Exh. R-3, Maust notified Johnson that he was relieved of supervisory duties and that he and other complainers would be

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transferred. Exh. R-3. On February 6, 1986, Complainants' medical specialist transmitted to Maust "Doctor's First Reports" for Johnson, Hernandez, and Bradley, explaining that they had requested treatment to determine whether they had been affected adversely from exposures to PCBs and solvents, and he discussed the various investigations undertaken at NAVELEX as the result of employee health problems. Exh. R-4, p.2. See Exh. E, p. 2.

C. Complainants' Transfers/Terminations

1. Johnson and Hernandez

On February 6, 1986, Maust telephoned NAVELEX. Hernandez testified:

[H]e [Maust] told me--informed me--that I had asked for a transfer and he was complying with that request, and I told him that I didn't know what he was talking about. I did not request a transfer. All I requested was . . . that there be a type of investigation . . . to see what was happening to me physically, because I didn't understand what it was.

T. 111. Maust responded that Hernandez had no choice in the matter. T. 111-112. Hernandez testified that they discussed wages associated with transfer, with Maust informing him that he would receive the reduced wages called for under the NOSC contract. T. 112. On February 7, Johnson spoke to Maust by telephone, advising him that he opposed being transferred to NOSC at the reduced wage rate. T. 40-43.

On February 10, 1986, Johnson and Hernandez reported to work at NAVELEX. Steve Andrews, whom Maust had installed as the new on-site supervisor, confronted Johnson and Hernandez stating that they had been transferred to NOSC. Complainants disagreed, pointing out that they had received "nothing in writing about the transfer . . . what our working hours were going to be . . . or whether I was going to be retained as a supervisor over there." T. 41 (Johnson). See T. 63. Johnson testified that based on his personal experience written confirmation of the specifics of a job transfer was "common practice, with security companies. T. 64. Andrews telephoned Old Dominion's Virginia headquarters to verify the transfer. In Maust's absence, he spoke briefly to Judith Wright, the company's contract administrator, and then "put [Johnson] on the line." T. 82. Wright ordered Johnson and Hernandez off the NAVELEX premises, telling Johnson that they would not be compensated for any time spent at NAVELEX that day, and that if they refused to leave she would call the police and have then arrested. T. 63, 93-94; Exh. R-7, pp. 60, 107. Johnson and Hernandez considered themselves discharged.

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2. Mary Ann Bradley

Divorced with four dependent children, Bradley held a 40- hour/week "day" job as a secretary, working weekends and holidays as a security guard at NAVELEX. T. 151-152. She commuted to work by bus or bicycle. Occasionally Johnson gave her a ride home. T. 15O. Judith Klein, Old Dominion's project manager at NOSC, gave her a ride home on one occasion "several months" after Bradley's date of hire in May 1985. T 149-150, 236. Johnson had mentioned to Klein that Bradley did not own an automobile. T 214-215, 237 (Klein). During her employment at Old Dominion, Bradley received no poor performance evaluations and no reprimands. T. 150-151.

In early March 1986, Bradley was an hour late reporting to work because she had missed the bus.⁴ T. 186. Thereafter, on March 11, 1986, Supervisor Andrews telephoned Bradley at her day job. T. 153. She testified: "[Andrews] told me that he just had word from [Maust in] Virginia that if I didn't come up with a car within 10 days I would be terminated, that there was a rule for working with the company, and I told him that there was no such rule that I was aware of. Id.⁵ See T. 169. She testified: "I didn't know how to drive [a] car and I had no license, and I had no money to buy a car, so it would have been impossible for me to do all that within 10 days anyway." T. 168. When Bradley asked to see the rule, Andrews showed her a list that she never previously had seen, which bore the handwritten notation -- "this refers to Bradley" -- across from the specification that security officers must possess their own "personal car/vehicle." T. 172-173. Although Bradley requested "something in writing" documenting her termination, she received no formal written notice. T. 169. Her discharge became effective 12 days later on March 23, 1986. T. 170.

II. Analysis ⁶

A. Whether Old Dominion is a covered "employer"

Old Dominion argues that it is not subject to either the CAA or the TSCA because (1) it is not engaged in activities regulated by the Acts, e.g., the emission of airborne pollutants or the use, storage, and disposal of toxic substances, and (2) it had no control over conditions giving rise to Complainants' contamination complaints. Resp. Br. at 13-17.

The employee protection provision of the CAA provides in relevant part:

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No employer may discharge any employee or otherwise discriminate against any employee with respect to his compensation, terms, conditions, or privileges of employment because the employee (or any person acting pursuant to a request of the employee)--[engaged in protected activity] . . . . Any employee who believes that he has been discharged or otherwise discriminated against by any person in violation of . . . this section may . . . file . . . a complaint with the Secretary of Labor alleging such discharge or discrimination.

42 U.S.C. § 7622 (1988). The relevant portions of the TSCA employee protection provision, 15 U.S.C. § 2622(a) and (b), are virtually identical. These provisions focus on employment discrimination. Neither provision specifies particular employers that are covered. The CAA House of Representatives report states:

[E]mployees [are protected] from discharge, discrimination, or other retaliation which adversely affects the terms and conditions of employment due to an employee's participation in, or assistance to, the administration, implementation, or enforcement of the Clean Air Act . . . . Retaliatory action by the employer would also be prohibited if it were in response to an employee's exercise of rights under Federal, State, or local Clean Air Act legislation or regulations. This would be the case even if the employee's action was not directed against the employer (e.g., the filing of a citizen suit against the Administrator or against another company).

H.R. Rep. No. 294, 95th Cong., 2d Sess. 325-326, reprinted in 1977 U.S. Code Cong. & Admin. News 1404-1405 (emphasis added).⁷ Old Dominion was in the position to take the kind of employment action prohibited under the CAA and TSCA whistleblower provisions. Directed at preventing unreasonable risk to health and the environment, the CAA and TSCA prohibit the kind 'of retaliation at issue here. They do so by eliminating certain activities, including making health complaints, as legitimate bases for adverse action taken by an employer. Cf. Hill et al, and Ottney v. Tennessee Valley Authority, Nos. 87-ERA-23, 87-ERA- 24, Sec. Remand Dec., May 24, 1989, slip op. at 4-6 (Secretary found persuasive (1) Energy Reorganization Act intent to protect

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nuclear power workers concerned with safety and quality from retaliation and (2) regulatory determination that "'because [antidiscrimination section of Occupational Safety and Health Act] speaks in terms of any employee, it is . . . clear that the employee need not be an employee of the discriminator'").

The instant situation represents the exposure of a contractor's employees to hazards created by the operator of the worksite. But for the business arrangement of contracting with another employer for the particular services, a single employer would control all employees directly. In the circumstances of this case it would not make sense to tolerate discriminatory action taken by one employer while outlawing it when taken by another. Respondent's argument that it should not be held accountable since it assertedly had no control over the hazardous conditions begs the point. The issue here is employment discrimination which Old Dominion was perfectly capable of effecting. Cf. Brock on behalf of Parker v. Metric Constructors, Inc., 766 F.2d 469 (11th Cir. 1985) (in action brought under employee protection provision of Federal Mine Safety and Health Act, welding contractor unlawfully retaliated against its employees who refused to work in hazardous conditions created by owner's premises and equipment).

B. Whether Old Dominion unlawfully discriminated against Complaints

Old Dominion argues that Complainants did not engage in protected activity and that the Complainants' activity was not related to, or a motivation for, their discharges. Resp. Br. 19- 34. In "whistleblower" proceedings under CAA and TSCA, a complainant employee first must make a prima facie showing that protected activity motivated the employer's decision to take adverse action. The employer may rebut by showing that the adverse treatment was motivated by a legitimate reason. The employee then must establish that the reason proffered by the employer is not the true reason. Wagoner v. Technical Products, Inc., Case No. 87-TSC-4, Sec. Dec., Nov. 20, 1990, slip op. at 5-7.

It is unclear that the CAA or its implementing regulations are involved. See, e.g., 40 C.F.R. Part 61 (1990). While Complainants allege that the CAA is implicated, examination of the record fails to establish CAA coverage.⁸ Complainants have not met their burden on this issue.

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Under TSCA, An employee is protected if he:

(1) commenced, caused to be commenced, or is about to commence or cause to be commenced, a proceeding under this chapter, (2) testified or is about to testify in any such proceeding; or (3) assisted or participated or is about to assist or participate in any manner in such a proceeding or in any other action to carry out the purpose of this chapter.

15 U.S.C. § 2622(a) (1988). TSCA seeks to prevent unreasonable risk of injury to health and the environment, 15 U.S.C. § 2601, expressly addressing regulation of PCBs as hazardous chemical substances. 15 U.S.C. § 2605(e). A complaint about an unsafe or unhealthful condition communicated to management or to an outside regulatory agency such as CAL/OSHA is protected under this type of statutory language. Kansas Gas & Elec. Co. v. Brock, 780 F.2d 1505 1510-1513 (10th Cir. 1985), cert. denied, 478 U.S. 1011 (1986); Mackowiak v. University Nuclear Systems, Inc., 735 F.2d 1159 (9th Cir. 1984).

Complainants made internal complaints about contamination hazards and their consequential ill health. Hernandez and Bradley complained to Johnson, their supervisor. Johnson, in turn, complained to top personnel in Old Dominion's corporate headquarters. Exh. R-1. All Complaints filed written complaints with an external regulatory agency, the California occupational Safety and Health Administration, citing as suspected hazards exposures to PCBS, Freon fumes, and chlorinated solvents. Exhs. A, B, C.

The substance of the complaint determines whether activity is protected under the particular statute at issue. In Aurich v. Consolidated Edison Co. of New York, Inc., Case No. 86-CAA-2, Remand order, Apr. 23, 1987, the Secretary focused on the subject matter of the complaint, distinguishing between complaints restricted solely to occupational safety and health and those touching public safety and health, the environment, or compliance with regulations under the particular environmental protection statute. Slip op. at 4. Complaints about PCB leakage fall within the purview of TSCA, which regulates PCB use. 15 U.S.C. § 2605(e); 40 C.F.R. Part 761 (1990). TSCA governs recordkeeping, marking, storage, disposal, and spill cleanup

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of PCBs and PCB items. Violations of the regulations were found by EPA at Air Force Plant 19, including leakage from, and contamination by, in-service electrical transformers. The complaints to management and CAL/OSHA were grounded in conditions constituting reasonably perceived violations of the TSCA and its regulations. Therefore, TSCA properly is invoked to cover the particular facts of this case.

The second criterion for a prima facie showing of unlawful discrimination -- that Complainants suffered adverse employment action -- was met. Adverse action in Bradley's case is clear -- she was discharged. The ALJ found that Johnson and Hernandez were ordered transferred to the NOSC, facility at Point Loma with substantially reduced wages and benefits; that despite complainants, inquiries, Maust and Wright "refused to tell [them] what their new wages would be," R.D. and O. at 8; that Complainants reasonably believed they would receive the NOSC rate; and that the Wright-Maust testimony that they intended lateral transfer at the NAVELEX wage rate was "unbelievable. R.D. and O. at 4.⁹ Johnson was demoted and relieved of supervisory responsibility. Exh. R-3. See DeFord v. Secretary of Labor, 700 F.2d 281l 287 (6th Cir. 1983).

The remaining criterion for establishing a prima facie case is that a Complainant must present "evidence sufficient to raise the inference that . . . protected activity was the likely reason for the adverse action." Dartey v. Zack Co., Case No. 82-ERA-2, Sec. Dec., Apr. 25, 1983, slip op. at 10, quoting Cohen v. Fred Mayer, Inc., 686 F.2d 793, 796 (9th Cir. 1982). The proximate timing of the conduct vis-a-vis the adverse action may tend to support an inference of causation. Here, Complainants engaged in a series of complaints culminating in the mid-January 1986 letter to Maust from a private attorney referencing Johnson's and Hernandez's complaints. Exh. R-3. Old Dominion took adverse action against these Complainants in early February, shortly after receiving that letter. In early March, Bradley was notified that she would be discharged. This action closely followed Maust's receipt of the medical specialist's letter of February 6, 1986, in which Bradley was named as one of the employees involved in the complaints and investigations. Exh. R-4. The timing raises an inference of causation, Mackowiak v. University Nuclear Systems, Inc., 735 F.2d at 1162; Couty v. Dole, 886 F.2d 147, 148 (8th Cir. 1989), supported by the testimony regarding Maust's attitude toward and handling of complainers and his decision to discharge Hernandez because he "had filed another complaint." T. 100-103. I find the

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Complainants' showing sufficient to establish a prima facie case of unlawful discrimination.

Respondent has not articulated any motivation, other than the contamination complaints, for taking adverse action against Johnson and Hernandez. See R.D. and O. at 8. Respondent's professed good faith in attempting to accommodate Complainants by ordering them removed, Exh. R-3, does not alter the fact that their transfers and demotions were the direct result of their complaints.

Respondent asserts that it discharged Bradley because she did not own an automobile. Resp. Br. 28-29. I agree with the ALJ that this basis was pretext, and I adopt his findings and reasoning on this point. See R.D. and O. at 5, pars. 1 and 2.¹⁰

I find the following considerations persuasive: (1) Both Johnson and Hernandez corroborated Bradley's testimony that owning an automobile was not an employment requirement; (2) as of August 1985, management knew that Bradley did not own an automobile and never took action against her until made aware of her protected activity, T. 149-150, 214-2151 236-237; cf. D & D Distribution Co. v. NLRB, 801 F.2d 636, 642-643 (3d Cir. 1986); and (3) the ALJ's finding of disparate treatment is supported by Exhibit R-7, attachments 10-A through 10-U, and by management's testimony that tardy employees were subject to progressive discipline. T. 187; 190, Exh. R-7, p. 30. An employer's failure to follow its normal procedures can, in an appropriate case, suggest deliberate retaliation. DeFord v. Secretary of Labor, 700 F.2d at 28.7. Moveover, the unrealistically short period of time allowed Bradley to comply with management's ultimatum is evidence of pretext. See Kansas Gas & Elec. Co. v. Brock, 780 F.2d at 1513. I find that Respondent's proffered legitimate reason for discharging Bradley is unworthy of credence and that Respondent took adverse employment action against her because of her protected activity.

C. Whether Johnson and Hernandez were constructively discharged

Old Dominion contends that, when faced with transfer, Johnson and Hernandez quit voluntarily. See Resp. Br. 23-24, 27- 28, 32. Unless Complainants were constructively discharged, however, they would not be eligible for postresignation damages

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and pay or for an opportunity for reinstatement. Derr v. Gulf Oil Corp., 796 F.2d 340, 343 (10th Cir. 1986). The ALJ found that the refusal by Johnson and Hernandez to accept their transfers was not unreasonable. This finding is tantamount to a finding of constructive discharge. See id. at 343; Satterwhite v. Smith, 744 F.2d 1380, 1381 (9th Cir. 1984).

The adverse consequences flowing from a violative employment decision generally are insufficient to substantiate a finding of constructive discharge. The presence of "aggravating factors" is required. Clark v. Marsh, 665 F.2d 1168, 1174 (D.C. Cir. 1981). Whether a constructive discharge has occurred depends on whether working conditions were rendered so difficult, unpleasant, unattractive, or unsafe that a reasonable person would have felt compelled to resign.¹¹ Goss v. Exxon Office Systems Co., 747 F.2d 885, 887-888 (3d Cir. 1984).

The Secretary addressed the doctrine of constructive discharge in Perez v. Guthmiller Trucking Co., Inc., Case No. 87-STA-13, Sec. Dec., Dec. 7, 1988, slip op. at 24-27; Taylor v. Hampton Recreation and Hampton Manpower Services, Case No. 82-CETA-198, Sec. Dec., Apr. 24, 1987, slip op. at 7-9; Hollis v. Double DD Truck Lines, Inc., Case No. 84-STA-13, Sec. Dec., Mar. 18, 1985, slip op. at 8-9, employing in those cases an objective standard adopted under antidiscrimination legislation. See Simpson v. Federal Mine Safety & Health Rev. Com'n, 842 F.2d 453; 461-463 and nn.8,9 (D.C. Cir. 1988). In Taylor v. Hampton Recreation, the Secretary concluded that the employee's resignation was coerced where he had endured a pattern of abuse by his immediate supervisor, the supervisor repeatedly had refused to provide him with guaranteed job training, the confrontations and threats of imminent discharge adversely affected the employee's health, and top management had manifested insensitivity and a marked lack of response to the employee's grievances and requests for assistance.

Johnson and Hernandez complained repeatedly about contamination hazards. Old Dominion's response was to ignore and then to "stonewall" them. Johnson's oral complaint was not addressed. If his memorandum elicited a response, it was belated and combined with reaction to his private attorney's letter. That response consisted of (1) written notification that Johnson was relieved of supervisory responsibilities and that the company would transfer him and others who complained; and (2) oral communication that Johnson and Hernandez would be transferred to the NOSC facility. Management declined to respond to Complainants' inquiries about terms of transfer, "refused to put

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anything concerning the transfers in writing," R.D. and O. at 4. and refused to discuss Complainants' protestations. These Complainants were consigned to the remote worksite at Point Loma. They reasonably believed that their wages would be reduced substantially, R. D. and O. at 8, and this reduction in fact was Respondent's intent, R.D. and O. at 4. The "flat rate" NOSC wage contract afforded Complainants no opportunity for the incremental wage increases based on seniority that they had achieved at NAVELEX. Old Dominion's refusal to address the problem, or even to discuss it, became unequivocal when Ms. Wright ordered Complaints from the premises under threat of arrest. "A reasonable person would certainly resign employment after being ordered to leave." Welch v. University of Tex. & Its Marinc Science, 659 F.2d 531, 534 (5th Cir. 1981).

I find the following aggravating factors: Complainants made repeated attempts to elicit responsible action by Old Dominion; Old Dominion instituted a program of inadequate response to complainants' concerns; and Old Dominion ultimately attempted to force upon Complainants a wholly unacceptable transfer solution."¹² Complainants' continued presence at NAVELEX was unavailing. They would have been subject to arrest had they remained. I conclude that a reasonable person would have felt compelled to resign in these circumstances.

III. Relief ¹³

TSCA provides that if the Secretary determines that a violation of its employee protection provision has occurred, she:

shall order (i) the person who committed such violation to take affirmative action to abate the violation, (ii) such person to reinstate the complainant to the complainant's former position together with the compensation (including back pay), terms, conditions, and privileges of the complainant's employment, (iii) compensatory damages, and (iv) where appropriate, exemplary damages.

15 U.S.C. § 2622 (b) (2) (B). The Secretary also is required to assess costs and expenses, including attorney's fees, reasonably incurred in bringing the complaint.

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A. Reinstatement, Lost Wages, and Front Pay

Respondent is ordered to offer Complainants reinstatement to their former or comparable positions, if it has not done so. 15 U. S. C. § 2622(b)(2)(B)(ii). Respondent is ordered to compensate Complainants for back pay. I adopt most of the ALJ's recommendations in this regard, R.D. and O. at 8-9. as modified in his Recommended Decision and order on Reconsideration at 2. Back pay shall be computed up to the date that Complainants are, or were, offered reinstatement.

The ALJ ordered Respondent to pay Complainant Johnson $4,266.66, representing lost wages for the two and two-thirds months of unemployment prior to his finding another job, and $600 per month from April 29, 1986, the date of his new employment, until reinstatement is offered as compensation for the differential in wages earned in his former position and his new, reduced wage. Respondent was ordered to pay Complainant Hernandez $3,266.66, representing lost wages for two and one- third months of unemployment, and $,540 per month from his April 22, 1986, date of new employment until Respondent offers him reinstatement to compensate for the pay differential between wage rates. Complainant Bradley was awarded $600 per month from March 23, 1986, until offered reinstatement by Respondent. The ALJ's method for computing back pay was to determine the compensation that the Complainants would have received had Respondent continued their employment and to offset this amount by any amounts earned in replacement jobs. I consider the ALJ's approach to be appropriate, and his recommended order accurately applies this method to the circumstances as they existed at the time of the hearing.

The R.D. and O. does not provide a basis for computing wage differentials after the hearing. For the intervening period between the date of the hearing and the date reinstatement is offered, the back pay awards shall reflect the difference between the amount each Complainant would have been compensated had his or her employment by Respondent continued and the amount received as compensation in any replacement job. In the case of Complainant Bradley, whose employment by Respondent represented a second job, any compensation received for employment taken to supplement her primary job shall be offset against wages that she would have earned had she continued to work for Respondent.

Payment of prejudgment interest on this back pay amount is ordered. Wells v. Kansas Gas & Electric Co., Case No. 85-ERA- 0022, Sec. Dec., Mar. 21, 1990, slip op. at 17 and n.6.¹⁴

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I do not view an award of front pay to be appropriate. Complainants' Post-Trial Brief in Support of Final order for Damages and Fees (Comp. Br.) 4-5. Front pay may be awarded prospectively if reinstatement is impractical, impossible, or an inadequate remedy, e.g., reinstatement may not be feasible due to ongoing antagonism between a discriminatee and an employer. I do not find in this case behavior on which to premise the expectation of continuing antagonism. Moreover, other special circumstances present where front pay has been ordered do not appear here. See Wildman v. Lerner Stores Corp., 771 F.2d 605, 614-616 (1st Cir. 1985); Goss v. Exxon Office Systems Co., 747 F.2d at 889-890.

B. Damages

While the ALJ recommended that compensatory damages be awarded, he recommended against awarding exemplary damages as veil as certain other damages, i.e., lost employment benefits, moving expenses, and loss of education.¹⁵ R.D. and O. at 8-9. Under TSCA, I must order any compensatory damages shown to exist upon finding that the whistleblower provision has been violated. TSCA requires me to order exemplary damages "where appropriate." 15 U.S.C. § 2622(b)(2)(B).

(1) Compensatory Damages

Complainants seek compensation for emotional distress, humiliation and personal indignity, emotional pain, embarrassment, fear, anxiety and anguish precipitated by Respondent's unlawful discharge of Complainants. See Hobson v. Wilson, 737 F.2d 1, 62 and nn.175-177 (D.C. Cir. 1984), cert. denied, 470 U.S. 1084 (1985); Restatement (Second) of Torts § 905 (1979). Such awards are authorized under TSCA and may be supported by the circumstances of the case and testimony about physical or mental consequences.¹⁶ See Schlei & Grossman, Employment Discrimination Law, ch. 38 (2d ed. 1976) at 1453 n.163, 1989 Supp. at 543-545; Sebastian v. Texas Dept. Of Corrections, 558 F. Supp. 507 (S.D. Texas 1983); Donovan v. Reenbold, 433 F.2d 738; 743 (9th Cir. 1970), modifying Donovan v. Mobley, 291 F. Supp. 930, 932 (C.D. Cal. 1968); Crawford v. Garnier, 719 F.2d 1317, 1324 (7th Cir. 1983); Rhoads v. Horvat, 270 F. Supp. 307, 311 (D. Colo. 1967).

All Complainants provided testimony establishing a basis for compensatory awards, which the ALJ credited. The ALJ's recommendation that Johnson and Hernandez each be awarded $2,500

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is consistent with the amounts awarded in the above cases. Accordingly, I adopt these amounts. The ALJ dud not explain why he recommended a larger award for Complainant Bradley, and upon review of the case law, I find this amount excessive. Compare DeFord v. Secretary of Labor, 700 F.2d at 283; DeFord v. Tennessee Valley Authority, Case No. 81-ERA-1, Sec. Remand Dec., Apr. 30, 1983, slip op. at 2-3; Aumiller v. Univ. of Del., 434 F. Supp. 1273, 1309-1311 (D. Del. 1977). I find instead that an award to Bradley of $2,500 is appropriate. These awards are grounded on the following record evidence:

Complainants sustained prolonged exposure to chemical substances that acutely affected them in the form of flu-like symptoms, skin irritation, and in Bradley's case a gland enlargement.¹⁷ At least one of the substances vas carcinogenic. Exh. R-1. It was in these circumstances that Respondent took adverse employment action. Ongoing anxiety about symptoms coupled with frustration at their employer's persistent inaction exacerbated anguish, embarrassment, humiliation and economic anxiety associated with discharge.

Old Dominion caused Johnson and Hernandez anxiety by stonewalling them about their contamination complaints and by harassing them.¹⁸ Both men testified that during their unemployment following discharge they experienced anxiety due to economic uncertainty, bills and loans that they were forced to delay paying or repaying, and difficulty in finding other work. The loss of employment was disruptive. Both men were acquiring college credits toward bachelor's degrees. Lack of income forced Hernandez to drop out of school and Johnson to reduce his course load. Johnson was required to move his residence from San Diego to vista, California, for the purpose of taking new employment. See T. 44-47, 96-97, 116-1181 131. During the final two weeks of her employment at NAVELEX, Bradley was subject among her co- workers to the embarrassment of having been discharged. Then and thereafter she suffered considerable anxiety regarding the economic situation which she and her four dependent children faced. T. 175-176.\

(2) Exemplary Damages

Complainants request that exemplary damages be assessed. Exemplary awards serve in punishment for wanton or reckless conduct to deter such conduct in the future.¹⁹ The Restatement (Second) of Torts § 908 (1979) describes a two-step analysis. The threshold inquiry centers on the wrongdoer's state

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of mind: did the wrongdoer demonstrate reckless or callous indifference to the legally protected rights of others, and did the wrongdoer engage in conscious action in deliberate disregard of those rights. The "state of mind" thus is comprised both of intent and the resolve actually to take action to effect harm. If this state of mind is present, the inquiry proceeds to whether an award is necessary for deterrence.

Old Dominion manifested indifference to the public health purposes of the TSCA in its treatment of Complainants. See, e.g., Alicia Rosado v. Garcia Santiago, 562 F.2d at 121, citing Silver v. Cormier, 529 F.2d 161, 16:3 (10th Cir. 1976); Guzman v. Western State Bank of Devils Lake, 540 F.2d 948, 953-954 (8th Cir. 1976). Its conduct was largely in the nature of omission. Despite knowledge that the allegations of contamination were serious, Old Dominion limited its involvement to "monitoring the situation." The Complainants who persisted became expendable. Old Dominion quite readily removed these employees, leaving at risk other current and replacement employees. Although Old Dominion did not own or operate the equipment at Air Force Plant 19, as the entity providing security services, it was in a markedly better position in terms of economic leverage to insist on investigation and abatement than were its security guard employees. Old Dominion may have intended to discourage the contamination complaints through its unresponsiveness and "stonewalling." Maust's comments about, and behavior toward, Hernandez suggest hostility to complainers and indifference to conveying the message that complainers will be replaced. on the other hand, Old Dominion's initial unresponsiveness may have been due in part to its remoteness from the NAVELEX facility and its lack of direct control over the sources of contamination.

Absent much in the way of retaliatory incidents predating the discharges, the events of February and March 1986 are left as the predominant basis for any exemplary damage award. Generally, a bare statutory violation is insufficient to substantiate such an award. Guzman v. Wester State Bank of Devils Lake, 540 F.2d at 953. While these events may be viewed to exceed somewhat the violation of retaliatory discharge, in my view they fall short of the conduct present in a number of relevant cases.²⁰ I do not view Respondent's intent and actions as meeting the threshold for an exemplary damages award. Because I do not find the existence of the requisite state or mixed, I need not resolve the question of deterrence.

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C. Fees and Costs

I must assess costs and expenses reasonably incurred by Complainants. 15 U.S.C. § 2622(b)(2)(B). See also DeFord v. Secretary of Labor, 700 F.2d at 288-289. The ALJ in his Recommended Order for Fees fully considered Complainants' fee application and Respondent's objections to it. For purposes of identifying a reasonable attorney's fee rate, the ALJ considered appropriate factors. See Pennsylvania v. Delaware Valley Citizens' Council, 478 U.S. 546-566 and n.7 (1986). I have considered also the factor of delay. See Missouri v. Jenkins, 109 S. Ct. 2463, 2468-2469 and n.6 (1989). Attorney's fees awards are based on market rates for services, the majority of which were performed here in 1986. Compensation received years after performance of services is not equivalent to that received promptly. Adjustment for delay in payment by application of more current hourly rates is appropriate. In its 1986 objection to the fee request, Respondent suggested that a rate of approximately $100 an hour was then a market rate for counsel's services in the San Diego area. I consider that the hourly rate of $125 recommended by the ALJ may be a more current rate which would compensate counsel for delay. I accept as reasonable and adopt the recommendations as to the appropriate hourly rate, see Hall v. Ochs, 817 F.2d 92,0, 929 (1st Cir. 1987), Sebastian v. Texas Dept. of Corrections, 558 F. Supp. at 512, as well as to the compensable hours expended.²¹ I have made adjustment for the additional fees submitted by Complainants on July 6, 1987.

IV. Order

Old Dominion Security, is ordered to:

1. Offer each Complainant reinstatement to his or her former or comparable position together with the compensation, terms, conditions, and privileges of the Complainant's former employment;

2. Compensate Complainant Johnson for back pay through August 4, 1986, and compensatory damages in the amount of $8,566.66;

3. Compensate Complainant Hernandez for back pay through August 4. 1986, and compensatory damages in the amount of $7,386.66;

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4. Compensate Complainant Bradley for back pay through August 4, 1986, and compensatory damages in the amount of $5,500;

5. Compensate each Complainant for back pay between the August 4, 1986, date of hearing and the date reinstatement is offered in an amount representing the compensation that he or she would have received in continued employment for Respondent less any earnings from a replacement job during that period;

6. Pay back pay with interest to accrue commencing with the last day of each calendar quarter of the back pay period on the total amount of back pay then due and owing at the rate then in effect under section 6621 of the Internal Revenue Code for use in computing interest charged on underpayment of Federal taxes, and continuing at such rate as modified from time to time by the Secretary of the Treasury, until compliance with this order;

7. Pay to Complainant's counsel, Carl Fabian, attorney's fees in the amount of $9,900 and reimbursement for costs in the amount of $691.40.

SO ORDERED.

LYNN MARTIN
Secretary of Labor

Washington, D.C.

[ENDNOTES]

¹ Hernandez experienced headaches, memory loss, stress, increased temper, backaches, aching joints, tingling and swelling in his feet, and rashes. T. 107, 124-125. Johnson experienced severe headaches, dizziness, nausea, memory problems, lack of motivation, and irritability. T. 28. Bradley developed hives "all over [her] body," in July 1985, one and one-half months after beginning work at NAVELEX. In August she noticed an enlarged lymph node in her groin. She never before had experienced either symptom. She testified, "We all had popping in the ears and sometimes would feel light-headed . . . " Symptoms would manifest themselves shortly after arrival at work, T. 66 (Johnson), T. 163 (Bradley), and would dissipate within four to six hours after leaving. T. 66 (Johnson). Hernandez testified: "It was mind-boggling, wondering what has happening to me." T. 128.

² Polychlorinated biphenyls (PCBS) are nonflammable liquids that are highly resistent to electrical current. These related chlorinated hydrocarbon chemicals are used to fill electrical devices such as transformers to aid in the storage of electrical charge. PCBs are extremely toxic to humans and wildlife, posing carcinogenic and other health risks to humans. See Env. Def. Fund v. Env. Prot. Agency, 636 F.2d 1267 (D.C. Cir. 1980); Environmental Defense Fund v. E.P.A., 598 F.2d 62 (D.C. Cir. 1978).

³ Mr. Maust denied being motivated by the filing of complaints. Exh. R-6, pp. 33-36, 39. He also testified that contract violations found as the result of a Labor Department complaint could have "very definite repercussions of [a company's] doing any more Government business," referring to the possibility of debarment. Id., p. 62.

⁴ Johnson testified that at most Bradley had been late for work "maybe two times" during the summer and fall of 1985 when the guards were working extended shifts. T 77-78. Bradley explained that she obtained permission to arrive an hour late on a few Sundays when she agreed to work the extended 8:00 a.m. to 10:00 p.m. shift since the Sunday bus service began operation at 8:30 a.m.

⁵ Johnson and Hernandez testified that there was no requirement for employment that the individual own an automobile. T. 77, 79, 98, 123; 243. Old Dominion witnesses testified that the requirement was listed in the packet of materials given to new employees. T. 191-192, 201-203. At the August 1986 administrative hearing, Andrews testified that packets had first become available at the NAVELEX facility "a couple of months ago." T. 192.

⁶ Respondent contends that it was denied a fair hearing before the ALJ. Respondent's Brief in Opposition to Recommended Decision and Orders (Resp. Br.) at 9-13. On the morning of the hearing, counsel, having been newly-retained by Respondent, requested a continuance. The ALJ denied the motion. During the course of the hearing he received exhibits despite neither party's having complied with his prehearing order requiring service of proposed exhibits on all parties prior to the hearing. I reject Respondent's contention. The rudiments of administrative due process is adequate notice and the opportunity to present evidence on one's behalf and to cross-examine opposing witnesses -- were met. See In the matter of Charles A. Kent, Case No. 84-WPC-2, Remand Dec., Apr. 6, 1987, slip op. at 9-10 citing Hornsby v. Allen, 326 F.2d 605, 608 (5th Cir. 1964). The transcript reveals that Respondent was ably represented by two counsel. Despite counsels' late involvement Old Dominion was given adequate notice of the hearing and of the claims being brought against it. The ALJ accommodated Respondent by permitting the submission of post-hearing depositions in which two of Respondent's principals presented evidence. The ALJ did not abuse his discretion by receiving exhibits offered by both parties despite prehearing order compliance by neither.

⁷ The ALJ's point is well taken that security guards with patrol duties at industrial facilities are uniquely situated to observe violations of environmental protection statutes. R.D. and O. at 6. Congress found a related rationale persuasive, noting in the legislative history cited above that the best source of information about a company's activities often is its own employees.

⁸ The CAA seeks to prevent and control air pollution by regulating emissions into the atmosphere at particular sources. Generally, a complaint about contamination of workplace air, contained within a building, structure, facility, or installation which is not emitted into the external atmosphere, would not be covered under the CAA. The Complainants neither alleged, nor presented evidence, that contaminants were emitted into the atmosphere, nor into the workplace as contemplated by 40 C.F.R. §§ 61.146, 61.147 (1990) (EPA regulation of asbestos emission in demolition and renovation).

⁹I adopt the ALJ's credibility determinations that in January and February 1986, Ms. Wright and Mr. Maust in telephone conversations with Complainants Johnson and Hernandez discussed the subject of wages received upon transfer to NOSC, and that Wright and Maust did not intend to guarantee "seniority and wage benefits" to these Complainants, including continuance at their NAVELEX wage rates. R.D. and O. at 4.

¹⁰The ALJ credited Bradley's testimony "that when she was hired she told Mr. Johnson she did not own a car and that no one mentioned that it was a requirement as long as she got to work on time." He found "that Respondent took a much stricter stance with Ms. Bradley than with other past employees. Termination notices for other employees showed that they were usually fired only after repeated incidences, such as being completely late and repeatedly breaking company rules. He cited Haust's testimony that employees were given 30-45 days to comply with company policies and noted the unrealistic nature of a ten-day limit in which to "learn how to drive, schedule an appointment and take a driver's license test, and raise the funds to buy an automobile and finally locate a suitable automobile to buy." The ALJ stated: "Under these circumstances, it is hard not to conclude that Ms. Bradley's lack of an automobile was merely a pretext for firing her, in retaliation for her involvement with the Cal-OSHA investigation."

¹¹ Circumstances held sufficient to render resignation involuntary include a pattern of discriminatory treatment and "locking" an employee into a position from which no relief seemingly can be obtained. Clark v. Marsh, 655 F. 2d at 1174; Satterwhite v. Smith, 744 F.2d at 1382-1383. Transfer from a supervisory position to a "dead-end position requiring [the employee) to do virtually nothing was a form of enforced idleness both humiliating and detrimental." Hopkins v. Price Waterhouse, 825 F.2d 458, 473 (D.C. Cir. 1987), rev'd on other grounds, 109 S. Ct. 1775 (1989) (constructive discharge occurred where employee subjected to what any reasonable senior manager in her position would have viewed as "career-ending action"). See Lopez v. S.B. Thomas, Inc., 831 F.2d 1184, 1188 (2d Cir. 1987); Parrett v; City of Connersville, Indiana, 737 F.2d 690 (7th Cir. 1984). cert. denied, 469 U.S. 1145 (1985); Lincoln v. Board of Regents of Univ. System, 697 F.2d 928, 940-941 (11th Cir.) cert. denied, 464 U.S. 826 (1983); Calcote v. Texas Educational Foundation, 578 F.2d 95, 97-98 (5th Cir. 1978).

¹² Continued employment at NAVELEX was not offered as an alternative. In any event, Complainants had no indication that the contamination would be addressed.

¹³ Respondent urges that any remedy for discrimination is available exclusively under the California Labor Code, Resp. Br. 34-35, and that any remedy for emotional distress is available exclusively under the California Workers Compensation Act. Resp. Br. 35-38. TSCA provides an independent cause of action for the claimed discrimination, and complaints legitimately elected to pursue this avenue. No issue of duplicative recovery exists. Greenwald v. City of North Miami Beach, Fla., 587 F.2d 779, 781 (5th Cir.), cert. denied, 444 U.S. 826 (1979) (Safe Drinking Water Act). Respondent's remaining assertion is akin to that resolved in Miller v. Bolger, 802 F.2d 6601 662-666 (3d Cir. 1986). Damage resulting from discrimination is not an "injury," e.g., by accident or disease, subject to coverage under workers' compensation statutes. See DeFord v. Secretary of Labor, 700 F.2d at 289-291.

¹⁴ Department of Labor regulations implementing Section 3 of the Debt Collection Act of 1982, 31 U.S.C. § 3711(f) (1988), set forth the rate of interest chargeable on debts owed to the Department. Under 29 C.F.R. § 20.58(a) (1990), "[t]he rate of interest prescribed in section 6621 of the Internal Revenue Code shall be Bought for packages recovered in litigation by the Department." While this regulation, by its terms, is not controlling on the question of appropriate prejudgment interest in this case, adopting an approach consistent with the regulation is reasonable. See also New Horizons for the Retarded, Inc., 283 NLRB No. 181, 125 LRRM 1177 (May 28, 1987) (applying IRS rate to back pay under National Labor Relations Act); EEOC v. Pacific Press Pub, Ass'n, 482 F. Supp. 1291, 1319-1320 (N.D. Cal. 1979), aff'd, 676 F.2d 1272 (9th Cir. 1982) (applying IRS rate to prejudgment interest under Title VII).

¹⁵ I agree that these other "special" damages are not sufficiently documented or explained to permit an award. See T. 45-46, 96-97, 117-118.

¹⁶ "Distress is a personal injury familiar to the law, customarily proved by showing the nature and circumstances of the wrong and its effect on the plaintiff." Carey v. Piphus, 435 U.S. 247, 263-264 (19708). See Memphis Community School Dist. v. Stachura, 477 U.S. 299, 306-301 (1989) Testimony as required as to some form of disagreeable emotion, anxiety, feeling of intimidation, etc. Hobson v. Wilson, 737 F.2d at 61. The factfinder may measure this testimony against the circumstances of the case to gauge whether the violation justified the distress. Id. at 61-62 and n.173; Seaton v. Sky Realty Co., Inc., 491 F.2d 634, 636-637 (7th Cir. 1974). Recovery of the type claimed here is available under whistleblower provisions. DeFord v. Secretary of Labor, 700 F.2d at 288; English v. Whitfield, 858 F.2d 957, 964 (4th Cir. 1988).

¹⁷ The gynecologist that Bradley contacted advised her that an enlarged lymph node indicated either an infection or cancer. T. 165.

¹⁸ In November 1985, Maust began pressuring Johnson to discharge Hernandez because he had filed "another" complaint -- the CAL/OSHA complaint filed earlier that month. T. 100-102. Hernandez felt continuing uncertainty about his job security that increased in February 1986 when Maust pressured both men to transfer to NOSC. T. 112-115. During this period, these complainants experienced irritability, temper, and distraction. T. 28, 107, 111, 124-125. Hernandez was uncertain whether to attribute his symptoms to toxic exposure or to the stress that he felt as the result of "all the pressure Mr. Maust and Mr. Maust's company was putting [on him] . . . ." T. 130. Old Dominion humiliated these Complainants by confronting them publicly about their transfers and by threatening them with arrest. T. 40, 63, 81, 94.

¹⁹ Memphis Community School Dist. v. Stachura, 477 U.S. at 306 n. 9; Silkwood v. Kerr-McGee Corp., 769 F. 2d 1451, 1460, 1466 (10th Cir. 1985), cert. denied, 476 U.S. 1104 (1986); Smith v. Wade, 461 U.S. 30, 54 (1983). See Goodwin v. Circuit Court of St. Louis County, Mo., 729 F.2d 541, 548 (8th Cir. 1984), Alicea Rosado v. Garcia Santiago, 562 F.2d, 1141 121 (1st Cir. 1977). See also Rowlett v. Anheuser-Busch, Inc., 832 F.2d 194, 206 (1st Cir. 1987); Karns v. Emerson Elec. Co., 817 F.2d 1452, 1458 and n.5 (10th Cir. 1987).

²⁰ Rowlett v. Anheuser-Busch, Inc., 832 F.2d 194, 207 (1st Cir. 1987); Fishman v. Clancy, 763 F.2d 485, 489 (1st Cir. 1985); Guzman v. Western State Bank, 540 F.2d at 953-954; Aumiller v. Univ. of Del., 434 F. Supp. 1273, 1312 (D. Del. 1977).

²¹ I reject Respondent's argument that counsel's prior agreement with Complainants should dictate the fee award. The decision in Blanchard v. Bergeron, 109 S.Ct. 939, 943-944 (1989), holds that an attorney's private fee arrangement does not form the ceiling for an award. Although it may be considered in conjunction with other factors, the ultimate criterion is "what is reasonable." Id. at 943, citing Johnson v. Georgia Highway Express, Inc., 488 F.2d 714, 718 (5th Cir. 1974).