The evidence that complainant was laid off because the respondent was experiencing a
downturn in business necessitating a reduction in its work force is not convincing given that
complainant was working a regular schedule up until the day of his layoff and was told that there
was no work when in fact a third day driver had to be called in from the Reading spoke.
Although the revenues from the Weston spoke dropped off by several thousand dollars the week
complainant was let go, the fact that complainant's release was not in conformity with
respondent's policy combined with its timing the day after complainant refused to drive an
overweight load and complained to the company president persuades me that complainant was
laid off in retaliation for not hauling the load on December 14.
3. Damages
Once it is determined that there has been a violation of the Act, appropriate damages and
remedies are to be determined according to §405(c)(2)(B), which reads in pertinent part:
-
[T]he Secretary of Labor 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, condition,
and privileges of the complainant's employment, and (iii) compensatory
damages.
[Page 11]
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
[Page 12]
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),
[Page 13]
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
[Page 14]
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.
ORDER
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.
[Page 15]
3. It is further recommended that respondent pay compensatory damages to complainant
in the amount of $2500.
- JEFFREY TURECK
- Administrative Law Judge
[ENDNOTES]