dispatch and instructed him to obtain a tandem-axle tractor from Ryder Truck Rentals in South Easton in order to safely pull the S.D. Warren load (TR 688). In the meantime, complainant called Mario back at and was told that if he did not take the load he was to go home (TR 201). Complainant then called the commercial vehicle unit of the Massachusetts State Police to satisfy himself that it was illegal to haul the load in an unpermitted 53 foot trailer (id.). He followed this call up with a call to Steve Irwin who, according to complainant, said, "Listen, bottom line, if you don't pull the bleeping load, you're not going to bleeping work." (TR 202) Still unwilling to transport the overweight load, complainant then went home for the day. The S.D. Warren load was delivered by Henry Gravelle, who drove from his assigned hub at Easton to Weston and then to Stoneham, Massachusetts to pick up a double-axle tractor to haul the load to its destination (TR 330, 339). While delivering the load, Gravelle received a citation for driving an unpermitted 53 foot trailer in Massachusetts (TR 330).

in a gradual manner by seniority (TR 871; CX 16(a)). It is only after a driver has not been needed for several days because of a lack of work that Steve Irwin encourages him or her to go on unemployment or seek another job (TR 873). Guaranteed's revenues dropped off the week of December 19-22, according to Irwin, necessitating layoffs affecting dock workers, dock supervisors, dock managers and drivers by seniority (TR 803, 819, 871). Up until the date of his layoff, however, complainant testified that he had been working the same number of days that he had regularly worked throughout his period of employment with respondent (TR 216). Likewise, John Pacevicz, a day driver out of the Worcester hub, testified that in his experience, the amount of work increases in October as the holiday rush begins and does not taper off until the middle of January (TR 672-73, 680). The record does indicate that nine drivers, in addition to the complainant, were laid off between November 2, 1994 and January 11, 1995 due to a lack of work (see RX 27, 28, 32, 34, 41, 42, 54, 56, 57).

Prior to the layoff, complainant had not experienced any disciplinary problems while employed by Guaranteed (TR 179). In fact, complainant has a flawless driving record (TR 166) and had volunteered for extra runs and worked weekends and during his vacation if necessary (TR 179).

B. Discussion

Section 405(a) of the Act states in pertinent part that:

No person shall discharge, discipline, or in any manner discriminate against any employee with respect to the employee's compensation, terms, conditions, or privileges of employment because such employee (or any person acting pursuant to a request of the employee) has filed a complaint or instituted or caused to be instituted any proceeding relating to a violation of a commercial motor vehicle safety rule, regulation, standard, or order, or has testified or is about to testify in any such proceeding.

complainant has established a prima facie case and presented evidence sufficient to raise an inference that protected activity was the likely reason for the adverse action, the burden of production shifts to the respondent to articulate a legitimate, nondiscriminatory reason for its employment decision. If the respondent successfully rebuts the inference of retaliation, the complainant bears the ultimate burden of demonstrating by a preponderance of the evidence that the legitimate reasons were a pretext for discrimination. Carroll v. Bechtel Power Corp., 91-ERA-46 (Sec'y Feb. 15, 1995).

a single axle tractor on December 14, 1994. Rather, respondent contends that complainant was simply sent home because of a lack of work. This contention is countered, however, by direct evidence that complainant was sent home without pay for his refusal to drive the overweight load. Steve Irwin stated as much when he told complainant that if complainant did not pull the load he would not work. The same instructions were given to complainant by Mario, the er, who told complainant that if he did not take the load then he should go home for the day. There is absolutely no evidence that respondent would have treated complainant the same way but for his refusal to drive the overweight load. For had complainant agreed to haul the illegal load he would have had work to do and he would have remained on the job and been paid. The fact that other drivers have been sent home for the day without pay for similarly refusing to drive overweight loads does not excuse respondent's actions. The record indicates that when drivers call to report an overweight load they are invariably told to haul the load or go home without pay. This practice hardly encourages drivers to comply with the law if they know that by refusing to drive an overweight load they will forfeit a day's pay. In fact, Doug Mace testified that he never refused to haul an overweight load because he has a wife and two children and was repeatedly told by that if he did not transport his load he would not be paid (TR 58-9, 62). Moreover, complainant was willing to haul the load with a double axle tractor. Instead, though, of allowing complainant to complete his run with proper equipment, respondent sent a driver from its Easton hub to Weston and then to Stoneham to rent a double axle tractor and haul the load. Obviously, it would have been easier to send the complainant, who already was in Weston, to pick up the double axle tractor in Stoneham and deliver the load.

Complainant was sent home without pay because he refused to drive an overweight load using a single axle tractor, not because there was a lack of work. Complainant, therefore, was punished for obeying federal motor carrier regulations in violation of the Act.

2. Layoff of December 15, 1994

Complainant maintains that he was laid off on December 15, 1994 in direct response to having complained about and refused to drive an overweight load the previous day. Respondent contends that complainant was laid off, whether at his request or not, because the company was experiencing a downturn in business. Complainant has demonstrated by a preponderance of the evidence that his layoff was in retaliation for refusing to deliver an overweight load. The evidence demonstrates that although respondent suffered a drop in revenues in December, 1994 necessitating a reduction in its work force, complainant's layoff was done in an unusual manner before there was a drop-off in work through the Weston spoke.

Complainant was laid off on December 15, 1994. Unlike previous years when respondent's business had increased during the holiday period, revenues from the Weston spoke fell during the second week of December, 1994 and remained less than they had been in November through the beginning of 1995. Weekly revenues in November ranged between approximately $15,500 and $17,000 (CX 5). Thereafter, weekly revenues through January, 1995

Complainant desires to be reinstated to his job as a day driver with respondent with back pay and restored benefits, including health insurance and lost 401(k) contributions, and seniority. Additionally, complainant requests compensatory damages for mental anguish and emotional distress.

Since complainant requests to be reinstated, he shall be reinstated immediately (see 29 C.F.R. §1975.109(b)). Additionally, complainant is entitled to retroactive seniority and restoration of pension benefits and health insurance to the extent it would affect current or future entitlement to benefits. Hamilton v. Sharp Air Freight Service, Inc., 91-STA-49 (Sec'y July 24, 1992); Dutile v. Tighe Trucking, Inc., 93-STA-31 (ALJ July 1, 1994).

Likewise, complainant is entitled to back pay. Back pay awards are based on the earnings the employee would have received but for the discriminatory action taken against him or her, in this case a retaliatory lay off. Blackburn v. Metric Constructors, Inc., 86-ERA-4 (Sec'y Oct. 30, 1991), rev'd on other ground, Blackburn v. Martin, 982 F.2d 125 (4th Cir. 1992). Complainant's average weekly wages while employed by respondent was $780 (TR 437). Complainant, though, has a duty to mitigate the damages by using reasonable diligence to find other suitable employment. Ford Motor Co. v. EEOC, 458 U.S. 219, 231 (1982). Interim earnings from replacement employment are, therefore, deducted from any back pay award made. Blackburn, 86-ERA-4. Similarly, an unconditional offer of reinstatement from the respondent tolls the accrual of back pay. Ford, 458 U.S. at 230. Respondent, however, argues that the amount of back pay owed to complainant should be reduced not only by his actual earnings during the period of unlawful lay off but also by amounts complainant should have earned but for the fact that he voluntarily left a subsequent job. Respondent additionally contends that it made two unconditional offers of reinstatement, both of which were ultimately rejected by the complainant.

A complainant's refusal of a bona fide offer of reinstatement to a substantially equivalent position amounts to a breach of his or her obligation to mitigate damages and tolls the accrual of back pay. Nelson v. Walker Freight Lines, Inc., 87-STA-24 (Sec'y Jan. 15, 1988). According to complainant's testimony, Mario, the er, asked him if he wanted to work as a line haul driver around January 10, 1995 (TR 224). Although he did not consider it an offer of employment because he doubted that the company would need another line haul driver without needing to increase its number of day drivers, complainant nevertheless informed Mario that he was not interested working nights (TR 224, 423). Substantially equivalent employment is employment that offers " virtually identical promotional opportunities, working conditions and status as the position'" from which complainant was discriminatorily released. Floca v. Homcare Health Services, Inc., 845 F.2d 108, 111 (5th Cir. 1988), quoting Sellers v. Delgado Community College, 839 F.2d 1132 (5th Cir. 1988). When complainant was laid off he was working as a day driver. It is immaterial to this issue that complainant had previously worked

for respondent as a line haul driver because complainant is not under any duty to accept a position substantially equivalent to jobs formerly held. Floca, 845 F.2d at 112. Respondent argues that the two positions, line haul driver and day driver, are substantially equivalent given that line haul drivers have the opportunity to earn more income on a daily basis and the position does not involve any physical labor. Assuming that the statement by Mario was an offer of employment, I find that the positions of day driver and line haul driver are not substantially equivalent. Although the compensation for both positions is roughly equal, the duties and working conditions are not. As a line haul driver, an employee is simply responsible for hauling a load between his or her spoke to respondent's terminal in South Kearney, New Jersey; it is an extremely solitary job with no variation in routine. A day driver, on the other hand, normally makes several short trips between numerous businesses and is responsible for loading and unloading pick-ups and deliveries and engaging in contact with respondent's customers. Moreover, several night shift drivers, including complainant who testified about his former work as a line haul driver, stated that they often worked out of hours; complainant, in particular, complained about the lack of sleep he experienced while working the night shift (see TR 56, 172, 174-75). If true, this contention increases the danger of working the night shift, a factor relied upon by other courts to distinguish night from day shifts. See Equal Employment Opportunity Commission v. Accurate Mechanical Contractors, Inc., 863 F. Supp. 828, 835-36 (E.D. Wis. 1994) (the working conditions on the night shift were far worse than the day shift because among other reasons it was statistically more dangerous to work the night shift).

Respondent contends that a second unconditional offer of employment was made to complainant in August, 1995. Complainant testified that Steve Irwin offered him his old job back with full benefits, seniority and pay scale but could not guarantee full time work (TR 230). Complainant resigned from his job and resumed his position as a day driver with respondent on September 25, 1995 (TR 230-31). He, however, only worked three days that week (TR 232-33). More important, according to complainant, by the second week of his reinstatement his benefits such as health insurance had not been restored and the personnel office was unaware that he had resumed employment with the company (TR 234, 309). Thereafter, complainant quit. Respondent argues that this employment constituted a full reinstatement because it was routine for the least senior driver at a spoke to work on an "on call" status. Although the record indicates that occasionally complainant stayed home because of a lack of work while he was a full time employee with respondent because he was the least senior day driver at the Weston spoke, working only three times a week with no benefits does not qualify as reinstatement to a position substantially equivalent to the one he held before being laid off.

Respondent also argues in the alternative that the complainant did not mitigate his damages. Respondent contends that complainant willfully incurred a loss of earnings by unreasonably resigning from a position with Ohio Hazardous Material Corporation. The respondent bears the burden of demonstrating that complainant failed to exercise reasonable diligence in seeking alternative employment or that he "intentionally or heedlessly" increased his damages. Moyer v. Yellow Freight System, Inc., 89-STA-7 (Sec'y Aug. 21, 1995); Hufstetler v. Roadway Express, Inc., 85-STA-8 (Sec'y Aug. 21, 1986),

overruled on other grounds, Roadway Express, Inc. v. Brock, 830 F.2d 179 (11th Cir. 1979). Complainant worked for Ohio Hazardous Material Corporation as a heavy equipment operator from April through July, 1995 (TR 380). Ohio Hazardous Material Corp. is a hazardous remediation company that contracts with the federal government to clean up Superfund sites (id.). He alternated between working seven 13 hour shifts and having a week off (id.). Complainant quit because he felt physically unable to handle the work schedule (TR 381, 434). Although his compensation with Ohio Hazardous Material Corp. exceeded that which he was earning while employed with respondent, complainant's reason for leaving this job was reasonable. The work scheduled required by Ohio Hazardous Material Corp. was extremely onerous and much more physically demanding than his job as a day driver with respondent. See Moyer v. Yellow Freight System, Inc., 89-STA-7 (Sec'y Aug. 21, 1995) (the working conditions with some of the interim employers were significantly different from his working conditions with his original employer such as long driving distances, uncertainly when he would be ed and a responsibility for travel costs and it was therefore reasonable for complainant to quit these jobs).

Finally, complainant requests compensatory damages for emotional distress and mental anguish in the amount of $48,000 based on a comparison of other such awards by several courts. The complainant contends that the layoff lowered his self-esteem (TR 351, 360). He became uncommunicative and experienced a change in his sleeping patterns and eating habits (TR 356-58). Moreover, the stress of his layoff also apparently adversely affected his relationship with his wife; complainant was not interested in socializing for several months and felt less than a man because he was financially unable to support his family (TR 357-58; 368). Because of the layoff, his family experienced a sparse Christmas unable to afford the usual number of presents for their children, had to cancel their annual summer vacation and their credit cards are charged to their limits (TR 354, 367, 368-69). Complainant's wife testified that she noticed complainant withdraw in the weeks following Christmas (TR 475).

Where appropriate, a complainant may recover an award for emotional distress when his or her mental anguish is the proximate result of respondent's unlawful discriminatory action. Blackburn v. Metric Constructors, Inc., 86-ERA-4 ( Sec'y Oct. 30, 1991). Complainant bears the burden of proving the existence and magnitude of any such injuries. See Busche v. Burkee, 649 F.2d 509 (7th Cir.), cert. denied, 454 U.S. 897 (1981). Compensatory damages for emotional distress cannot be awarded without proof that actual injury occurred. Carey v. Piphus, 435 U.S. 247, 263-64 (1978). Complainant contends that his emotional stress and mental anguish resulted both from the fact of the actual layoff and the diminished financial situation that it caused. The record contains evidence that complainant experienced some mental anguish caused in part by his lay off. From the testimony given by the complainant and his wife, it is clear that complainant withdrew following the layoff and became uncommunicative and sullen. However, I do not fully credit the extent of this distress claimed by complainant. For complainant had previously been laid off by a company which he felt he had a lot invested in and was, therefore, unemployed for three months in 1990 without experiencing a significant loss of self-esteem (TR 412, 446). Likewise, complainant's work history indicates that he frequently changed jobs prior to working for Guaranteed, although it must be noted that he never did so

until he had secured alternate employment (see TR 393-412). Thus, complainant was somewhat accustomed to employment changes. See Tritt v. Fluor Constructors, Inc., 88-ERA-29 (ALJ Decision Aug. 29, 1994). Moreover, complainant's reduced financial situation was caused in part by the fact that his wife lost her job, as part of an office closing which complainant and his wife knew was pending in December, 1994 (TR 206).

The prosecuting party suggests compensatory damages in the amount of $48,000, a figure derived by averaging the damages awarded in four cases that it cites. Although the Secretary has approved of the comparative analysis method for determining an appropriate award of compensatory damages, in this case the prosecuting party's method and suggestion is ludicrous. The prosecuting party compared awards in four cases, only one of which was a whistleblower case. The only similarity shared by this and the other three cases is the fact that each plaintiff lost his or her job. See Stafford v. Puro, 63 F.3d 1436 (7th Cir. 1995) (plaintiff filed a claim under the Illinois Wage Payment and Collection Act and alleged tortious interference with a compensation agreement); Muldrew v. Anheuser-Busch, Inc., 728 F.2d 989 (8th Cir. 1984) (plaintiff filed a race discrimination claim under the Civil Rights Act of 1964); Barnett v. Housing Auth. of Atlanta, 707 F.2d 1571 (11th Cir. 1983) ( plaintiff filed a claim alleging that he was deprived of due process when he was fired without cause and a post-termination hearing). The fourth case cited by the prosecuting party, however, is analogous to this case. In Blackburn v. Metric Constructors, Inc., 86-ERA-4 (Sec'y Aug. 16, 1993), complainant was awarded $5000 in compensatory damages after the Secretary upheld the administrative law judge's findings that complainant suffered a loss of self-esteem and experienced stress which negatively affected his family due to his termination. The administrative law judge based his findings on the testimony of complainant, complainant's wife and complainant's father. Greater awards have been granted when a termination has had more serious emotional ramifications such as suicidal thoughts. See Lederhaus v. Pachen, 91-ERA-13 (ALJ Decision Aug. 9, 1991). On the other hand, awards for compensatory damages have been denied when a complainant testified without supporting statements from family or colleagues to a loss of sleep, gain in weight and irritability. Pogue v. U.S. Dept. of Navy, 87-ERA-21 (Sec'y Apr. 14, 1994). In light of these cases and the facts and circumstances of this case in which the primary testimony of emotional distress was given by the complainant himself with some support from his wife who stated that he withdrew from the family, I find that an award of compensatory damages in the amount of $2500 is appropriate.

1. Respondent shall immediately reinstate the complainant.

2. It is recommended that respondent pay back wages to complainant at a rate of $780 a week from December 14, 1994 until complainant is reinstated to his previous position. Respondent is entitled to a credit in the amount of $18,120.47 resulting from complainant's earnings in 1995, and an additional credit if complainant earned additional wages in 1996. Prejudgment interest calculated pursuant to 26 U.S.C. §6621 (1988) shall be paid.

3. It is further recommended that respondent pay compensatory damages to complainant in the amount of $2500.

JEFFREY TURECK

Administrative Law Judge