DATE: April 20, 1987
CASE NO. 85-WPC-3

IN THE MATTER OF

DONALD REXROAT
    COMPLAINANT

    v.

CITY OF NEW ALBANY, INDIANA
    RESPONDENT

APPEARANCES:

Stanley E. Robison, Jr., Esq.
    For the Complainant

Donald R. Forrest, Esq.
    For the Respondent

BEFORE:

Richard D. Mills
Administrative Law Judge

   On April 17, 1986, the Secretary of Labor adopted in its entirety the November 15, 1985 Amended Recommended Decision and Order. Said Order granted Complainant, Donald Rexroat, reinstatement to his former position with Respondent, City of New Albany, Indiana, with full back pay and interest, fringe benefits, and with reimbursement for all his costs and expenses including reasonable attorney fees.

   On June 2, 1986, the Secretary remanded this matter to the

undersigned for an initial determination as to Complainant's compensatory damages, costs and attorney fees.

   On October 8, 1986, the Secretary denied Respondent's Motion for a Stay of the April 17, 1986 Final Order.

   On February 9, 1987 and March 27, 1987, this Court received Stipulations (copies of which are attached hereto and made a part hereof and marked Joint Exhibit A and B) whereby the parties agreed to all matters in controversy except for two issues:

   1. Whether unemployment compensation paid by a state agency to Complainant should be deducted from his compensatory damages; and,

   2. Whether Complainant mitigated his damages.

   A formal hearing in this case was held in Louisville, Kentucky, on March 13, 1987. Each of the parties was afforded full opportunity to present evidence and argument at the hearing as provided in the Act and the Regulations issued thereunder.

   The findings and conclusions which follow are based upon my observation of the appearance and the demeanor of the witnesses who testified at the hearing, and upon a careful analysis of the entire record in light of the arguments of the parties, applicable statutory provisions, regulations, and pertinent case law.

   The first issue unresolved is whether the sum of $2,574.00 received by Complainant as unemployment compensation benefits should be deducted from the amount owed by Respondent as mitigation of damages. In the event the Employer is given credit for these moneys received by Complainant, a windfall will result to the City of New Albany since taxes normally paid into the state unemployment fund were not paid after the discharge of Mr. Rexroat.

   The U.S. Supreme Court held that the National Labor Relations Board was correct in refusing to deduct from back-pay awards sums paid to discriminatorily discharged employees as unemployment compensation by a state agency. National Labor Relations Board v. Gullett Gin Co., 34 U.S. 361, 71 S.Ct. 337,

339 (1951).

   I therefore find that the unemployment benefits paid Complainant are not earnings and are moneys received from a collateral source and therefore they are not deductible.

   The second and final contested issue relates to mitigation of damages by Complainant.

   The Employer has the burden of proving that Donald Rexroat has failed to mitigate his damages.

   Complainant testified on deposition and at the hearing regarding his activities pertaining to his efforts to seek employment from the date of his discharge in January, 1985. He applied for jobs at the Metropolitan Sewer District of Louisville, Kentucky; Louisville Free Public Library; Colgate Palmolive Corp.; Pillsbury Company; The Kroger Co.; Revlon Eye Care Corp.; the City of Jeffersonville Treatment Plant and the City of Hunningburg. (Tr. 36-42). In addition, Mr. Rexroat signed up at the Indiana State Unemployment Office and he received benefits upon satisfying his state's requirements for seeking employment.

   I found Mr. Rexroat an extremely honest, forthright and highly credible witness.

   The Respondent-contends that Mr. Rexroat was "just riding his case out waiting to collect on his claim with the Labor Department." (Tr. 8).

   I find that the testimony of Respondent's subpoenaed witnesses, Lawrence W. James, Dale W. Helmerich, Jo Ann Engleman and Glenn R. Farnsley failed to discredit Mr. Rexroat's testimony. Mr. James of Jeffersonville remembered speaking to Complainant on two occasions and received a resume from him. Mr. Helmerich, the Mayor of Hunningburg admitted that he could not recall all of his numerous daily phone calls. In particular, be could not remember the call from Mr. Robison, Claimant's counsel in April of 1985. (Tr. 26 and 44). He did not unequivocally deny receiving a job inquiry call from Mr. Rexroat. The Mayor testified, "Could be, I don't recall that." (Tr. 33).

   Mrs. Engleman, the Personnel Administrator for the Pillsbury Company, admitted that applicants' resumes are only retained for six months and that it was possible that Mr. Rexroat's resume had been submitted to her company even though she had no record of his application for employment. (Tr. 65).

   Likewise I find the testimony of Mr. Farnsley of the Indiana State Job Service fails to discredit Mr. Rexroat. Mr. Farnsley admitted that their records are purged after eleven months and therefore Mr. Rexroat could have applied for jobs through his agency at any time prior to that eleven month period (April of 1986). (Tr. 58).

   I find that Complainant has by his earnest effort adequately sought employment since his discharge in January, 1985. The Respondent has failed to prove that Donald Rexroat failed to mitigate his damages.

   I find the amounts set forward in the Stipulation of the parties to be correct and reasonable as to the damages, costs and attorney fees incurred from the date of Complainant's discharge in January, 1985 up to the date of the Stipulations, February 6, 1987 and March 27, 1987.

   Respondent, City of New Albany, shall pay to Complainant, Donald Rexroat for the period January 1, 1985 to March 27, 1987, the following:

   1. Lost Wages in the sum of $31,345.04 ($32,305.20 less a credit of $960.16 which Employer paid as accrued vacation).

   2. Interest in the sum of ,688.29.

   3. Retirement Fund Contribution, in the sum of $2,381.66 (Complainant waives interest).

   4. Health insurance in the sum of $2,272.00.

   5. Holiday pay in the sum of $865.92.

   Respondent has a continuing liability for damages until the date Complainant is reinstated or refuses reinstatement with the

City of New Albany.

   Respondent shall pay to Stanley E. Robison, Jr., Esquire, the agreed sum of $5,701.29 for attorney's fees and expenses.

      RICHARD D. MILLS
       Administrative Law Judge