U.S. Department of Labor Office of Administrative Law Judges
John W. McCormack Post Office and Courthouse
Room 507
Boston, Massachusetts 02109
Date: June 12, 1997
Case No.: 95-STA-29
ARB 96-198
In The Matter Of:
Robert Michaud,
Complainant
v.
BSP Trans., Inc.,
Respondent
Appearances:
Louis B. Butterfield, Esq.
For the Complainant
Lawrence C. Winger, Esq.
For the Respondent
Before:
DAVID W. DI NARDI
Administrative Law Judge
RECOMMENDED DECISION AND ORDER ON REMAND
This case arises under the Surface Transportation Assistance Act of 1982
(hereinafter "STA"), 49 U.S.C. §2301 et seq. Robert Michaud
(hereinafter "Complainant") filed a complaint which alleged that BSP Transport, Inc.
(hereinafter "Respondent") discriminated against him by discharging him because he
made safety complaints. The Administrative Review Board found Complainant stated a valid cause
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against Respondent and has remanded the case to the Office of Administrative Law Judges solely
on the issue of damages.
Post-Hearing Evidence
Post-hearing evidence has been admitted as follows:
Exhibit Content Date Filed
EX A Order of Reassignment from Judge Moore 01/29/97
to Judge DiNardi
EX B Notice of Hearing and Pre-Hearing Order 02/07/97
EX C Letter from Attorney Butterfield requesting 02/24/97
clarification of Notice of Hearing and
Pre-Hearing Order
EX D Letter from Attorney Butterfield with Motion 03/10/97
for Modification of Pre-Hearing Order and Notice
of Hearing; Memorandum of Law in Support of
said Motion; Proposed Order; and Certificate of
Service Enclosed
EX E Order Canceling Hearing and Establishing 03/11/97
Briefing Schedule
EX F Letter from Attorney Winger objecting to 03/17/97
cancellation of hearing
EX G Letter from Attorney Butterfield with 04/14/97
EX H Complainant's Brief on Remand enclosed 04/14/97
EX I Letter from Attorney Winger with 04/14/97
EX J Respondent's Brief on Remand enclosed 04/14/97
EX K Letter from Attorney Winger in regards to date 04/23/97
for filing reply to Complainant's request for fees
and costs
EX L Letter from Attorney Winger with 05/14/97
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EX M Respondent's Memorandum In Opposition 05/14/97
to Complainant's Request for Fees and Costs
enclosed
EX N Letter from Attorney Butterfield with 05/30/97
EX O Complainant's Memorandum in Response to 05/30/97
Respondent's Opposition to Request for Fees
and Costs Enclosed and
EX P First Supplement to Complainant's Petition for 05/30/97
Award of Attorneys' Fees and Costs and
EX Q Second Affidavit of Louis B. Butterfield Enclosed 05/30/97
EX R Letter from Attorney Winger with 06/11/97
EX S Respondent's Memorandum in Opposition to 06/11/97
Complainant's Supplemental Request for Fees
and Costs
The record was closed on June 11, 1997 as no further documents were
received.
Procedural History
Complainant filed a complaint of discrimination pursuant to Section 405 of
the Act with the Department of Labor, alleging he was discharged by Respondent for having
complained of hours of service violations. The complaint was investigated and found to have merit,
and on April 10, 1995, the Secretary issued his Findings and Preliminary Order. Respondent timely
filed objections and requested a hearing pursuant to 49 U.S.C. §31101(c)(2)(a). The case went
to hearing before Administrative Law Judge Christine Moore on February 20, 1996 in Bath, Maine.
Judge Moore issued a Recommended Decision and Order on
September 6, 1996 in which she recommended dismissal of the claim. In that proceeding, the parties
agreed to a number of stipulations, only some of which are relevant to this remand proceeding. In
particular, the parties stipulated to the following:
1. Complainant's employment with Respondent began on July 7, 1993 and ended on
December 23, 1993.
2. His wage rate at the time of termination was $9.50 per hour.
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3. Had Complainant continued employment with Respondent after December 23, 1993,
he would have
a. received two raises: (1) to $10.00 per hour effective Week 21 of 1994; and
(2) to $10.50 per hour effective Week 16 of 1995;
b. been entitled to receive pay at a time and one-half rate for hours worked over
45 hours per week;1
Complainant objected to the Recommended D&O and filed a memorandum
in opposition on October 18, 1996. The Assistant Secretary of Labor for Occupational Safety and
Health intervened and also submitted a memorandum in opposition to the Recommended D&O.
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
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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's Objection to Cancellation of Hearing
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
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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.
I. Facts Relevant to the Issue of Damages
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
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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.
1The Board inquired in its DRO as to the
reason for the parties stipulating to overtime pay for hours worked over 45 hours per week.
Respondent explains over-the-road tractor-trailer truck drivers are exempt from the overtime pay
requirements of the Fair Labor Standards Act and that Respondent, nevertheless, voluntarily pays its
employees at an overtime rate for those hours worked over 45 hours per week. (Respondent's Brief,
at p. 4)
2The Doctor states these physical
ailments may, or may not, have been worsened by the depression. (TR 374) The Doctor was more
certain, however, that complaints of chest pain, for which the Doctor recommended cardiology
evaluation, were related to anxiety caused by the depression. (TR 374-75)
3I note the Doctor testified he did not
advise Complainant to obtain another medical opinion on this issue. (TR 382)
4At this time, Complainant was
transferred to another clinician for treatment.
5Ms. Palmer concedes that impaired
memory, impaired perception of reality, and blaming others for one's own problems are characteristics
of major depression. She also stated, however, that Complainant never presented in such a way that
she interpreted him to be delusional, nor did his recollections appear inaccurate. (See Also
TR 398-99, expressing Dr. Farrand's similar opinion) Moreover, Ms. Palmer testified that she never
formed the opinion that Complainant was wrongly blaming others because he tended to focus on his
own guilt, i.e., his inability to provide for his family and his feeling of being a failure.
6The psychiatric evaluation of Dr.
Garnett is of somewhat limited evidentiary value because the Doctor was not present at hearing to
testify and be subject to cross-examination. This does not, however, deprive it of all value. This
Judge has considered the evaluation as corroborating evidence in assessing the validity and accuracy
of Ms. Palmer's diagnosis and assessment of Complainant's condition and as substantiation of
Complainant's self-reports.
7There was an October 1993
evaluation which noted Complainant spent a lot of time talking to other drivers when he should have
been working. (RX 14) This evaluation, however, pre-dated Complainant's engagement in protected
activities. The Board has held that Complainant's complaints to his managers about the 'vicious cycle'
and/or Complainant's acts of copying his time cards and his own manifests constituted protected
activity. (DRO, at p. 5) These acts began in November 1993 and concluded in December 1993.
(DRO, at pp. 3-4)
8I pause to note that there is evidence
of record which indicates some or all of Complainant's medical expenses incurred between his date
of termination and the date of hearing have been paid by Medicare and/or Medicaid. (See
Generally CX 9) In this regard, Respondent shall remit reimbursement directly to that
government sponsored program.
9The evidence which supported an
award in this amount consisted of complainant consulting physicians who prescribed anxiety and
depression medications, as well as other medications for chest pain; a treating psychologist testified
that respondent's discriminatory acts caused complainant's anxiety disorder and post-traumatic stress
disorder and respondent failed to offer any countervailing evidence on causation; and that same
psychologist testified complainant's wife and children noticed a radical change in complainant's
behavior, a serious strain in the marital relationship, and that divorce proceedings were begun,
although the couple did eventually reconcile.
10At hearing, complainant testified
to his lowered self-esteem and uncommunicativeness, to his change in sleep and eating habits, and
to the adverse effect on his marriage. He also testified that he was not interested in socializing, felt
'less than a man' because he could not support his family, and that the family experienced a sparse
Christmas. Finally, complainant testified the family had to cancel their annual summer vacation and
charge the credit cards to the limit. Complainant's wife testified she noticed complainant's withdrawal
in the weeks after Christmas.
11In Creekmore, the
Board noted ample evidence which justified an award of substantial compensatory damages. The
Board specified complainant's credible testimony that his layoff caused him embarrassment in seeking
a new job, emotional turmoil due to the disruption to his family life brought on by his temporary
consulting work and eventual relocation, and panic about being able to meet his financial obligations.
The Board stated that although it had reservations about whether complainant's heart attack was the
"natural sequela" of his layoff, it held an award of $40,000 was nevertheless justified in
light of the demonstrated panic, embarrassment, pain and suffering.
12The ALJ recommended a $75,000
compensatory damage award based on the treating psychologist's finding that complainant suffered
from chronic stress, paranoid thinking, a general distrust of others, a lack of confidence in his
engineering judgment, a fear of continuing repercussions, and a general feeling of apathy. The
psychologist further testified complainant will forever suffer from a full-blown personality disorder
and a permanent strain on his marital relationship. The Secretary reduced the award based on the fact
that the same psychologist indicated this psychological state was caused in part by a co-respondent
who had previously settled out of the case and that part of that settlement compensated for part of
complainant's compensatory damages.
13This award rested on
complainant's testimony that bringing the case had disrupted his home life, that his children's college
plans were changed because of the financial burden of unemployment, that he gained weight and
developed a blood pressure problem, that his stomach was in an uproar, and that he had feelings of
great depression. In addition, complainant testified to an incident where he was physically grabbed
by agents of the respondent and that he felt like a criminal because of these agents' aggressive and
intimidating behavior. Finally, complainant testified that he suffered harm to his reputation caused
by respondent distributing to other supervisors information stating complainant's behavior was violent
and aggressive.
14In Lederhaus, the
evidence established complainant remained unemployed for 5 months after his termination, he was
harassed by bill collectors, foreclosure was begun on his home and he was forced to borrow $25,000
to save the house. In addition, complainant's wife received calls at work from bill collectors and her
employer threatened to lay her off. Complainant had to borrow gas money to get to an unemployment
hearing and experienced feelings of depression and anger. Complainant fought with his wife and
would not attend her birthday party because he was ashamed he could not buy her a gift, the family
did not have their usual Christmas dinner, and complainant would not go to visit his grandson. In
fact, complainant cut off almost all contact with his grandson. The evidence revealed complainant
became difficult to deal with and this was corroborated by testimony from complainant's wife and a
neighbor. Complainant contemplated suicide twice.
15The evidence revealed the
complainant was harassed, blacklisted, and fired. In addition, complainant lost his livelihood, he
could not find another job, and he forfeited his life, dental and health insurance. The blacklisting and
termination exacerbated complainant's pre-existing hypertension and caused frequent stomach
problems necessitating treatment, medication, and emergency room admission on at least one
occasion. Complainant experienced problems sleeping at night, exhaustion, depression, and anxiety.
Complainant introduced into evidence medical documentation of symptoms, including blood
pressure, stomach problems, and anxiety. Complainant's wife corroborated his complaints of
sleeplessness and testified he became easily upset, withdrawn, and obsessive abut his blood pressure.
16The testimony of complainant,
his wife, and his dad established complainant was of the opinion that firing someone was like saying
that person is no good. The evidence also established complainant felt really in a low and that he
relied on his dad to come out of depression. The termination affected complainant's self-image and
impacted his behavior, which became short with his wife. The wife testified to the stress and
emotional strain on the marital relationship and the father testified to complainant's pride and work
ethic and the fact that complainant felt sorry for himself after the termination.
17This Administrative Law Judge
shall note Respondent states in its brief "the Secretary cannot find that the Complainant has
proven by a preponderance of the evidence that the December, 1993 employment termination was
the proximate cause of his various alleged emotional damages." (Respondent's Brief, at p. 9)
This Judge is of the opinion that the Respondent has misconstrued the Board's DRO. The Board, in
fact, remanded to the Office of Administrative Law Judges for further proceedings deemed necessary
and for a finding on the issue. Nowhere in the DRO did the Board intimate an opinion as to whether
or not Complainant had met his burden on this issue.
18The evidence does not necessarily
establish that Complainant's economic situation pre-dated his termination from Respondent
corporation. (TR 171-181; 251; 253)
19Complainant's counsel has
indicated he will be submitting a further supplement to his fee petition for services performed post-April 1997. Counsel is hereby NOTIFIED that this Administrative Law Judge relinquishes
jurisdiction over this matter upon issuance of this Recommended Decision and Order. Accordingly,
any further supplement to the fee petition shall be filed with and addressed by the Administrative
Review Board.
20I reach this total by adding the
first application, totaling $45,282.53, to the supplemental application which, according to my
calculation, totals $5,154.86.
21This Judge, upon review of
Complainant's Fee Petition, is unable to agree with Respondent's representation that the Bankruptcy
Court "apparently approved" that rate. Indeed, Complainant's counsel addresses this
characterization in EX O.
22I note that there are other
compensable services included in the time billed on 2/15/96, 2/19/96 and 2/21/96. Therefore, I have
adjusted one hour of each day from a $120.00 per hour rate (attorney rate) to a $25.00 per hour rate
(service of process rate).