UNITED STATES DEPARTMENT OF LABOR
OFFICE OF ADMINISTRATIVE LAW JUDGES
Date: January 17, 1996
Case No.: 85-CAA-1
In the Matter of:
DONALD J. WILLY,
Complainant
v.
THE COASTAL CORPORATION AND
COASTAL STATES MANAGEMENT COMPANY,
Respondent
BEFORE: John M. Vittone
Acting Chief Judge
ORDER
The undersigned will be the presiding judge in this matter.
Both parties indicated in response to my October 18, 1995 order
that this matter is now ripe for determination of the remand issue.
The case file has recently been recovered from the Office of
Administrative Appeals. Thus, the remand is now in a position to
proceed. The Secretary remanded this matter for only one purpose -
- specifically, for the ALJ to
. . . calculate back pay based on the difference between what
Complainant would have earned if he had continued to be paid
by Respondent and the amount he earned or with reasonable
diligence could have earned from the date of discharge to the
date of his discharge from Merichem Corporation. Since
Complainant did not leave Merichem because the work was not
comparable to the environmental work he was doing for
Respondent, but for "paying insufficient attention to his
duties," . . . I find that his right to back pay is cut off at
the time he stopped working for Merichem. . . .
Willy v. The Coastal Corp., 85-CAA-1, slip op. at 27
(Sec'y June 1, 1994).
Although he did not endeavor to calculate back wages, the
following findings of fact were made by Judge von Brand in his
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recommended decision:
(1) Complainant was fired by Respondent on October 1, 1984.
(Finding 80).
(2) At the time of discharge, Complainant was earning a
salary of $57,000-58,000 a year from Respondent. (Finding
93)
(3) Complainant began looking -- unsuccessfully -- for a new
job almost immediately following the termination.
(Finding 94)
(4) Complainant began work in November 1985 for the State of
Texas as a hearing examiner with an annual salary of
approximately $28,000 per year. Complainant discontinued
this work in September 1987. (Finding 95)
(5) Merichem Company advertised for an attorney to assist its
General Counsel in advertisements dated May 31, 1987 and
June 3, 1987. Complainant applied and was interviewed
several times. (Findings 101 and 102)
(6) Complainant was hired and began work for Merichem Company
on October 19, 1987 at a salary of $65,000 per year.
(Finding 102)
(7) Merichem terminated Complainant's employment on or about
May 26, 1988. (Finding 105)
These findings appear to provide most of the information needed to
make the required calculation., and I intend to rely on them unless
a party can establish why a particular finding is not supported by
the record.
Judge von Brand did not make a finding on what salary
increases, if any, the Complainant would have been reasonably
entitled to if he had continued to work for the Respondent during
the period between his discharge and his termination of employment
with Merichem. A recent decision by the Secretary indicates that
such salary increases should be considered in calculating a back
pay award. See Mosbaugh v. Georgia Power Co., 91-ERA-1 and
11 (Sec y Nov. 20, 1995). Except in regard to reasonable salary
increases, however, I am disinclined to permit a reopening of the
record in this matter.[1]
This administrative proceeding has spanned more than a decade.
The issue for determination on remand is narrow, and is one that
should be susceptible to a stipulation or settlement. Accordingly,
the parties are strongly encouraged to attempt a stipulation of
either the remand issue, or a settlement of the entire matter. If
the parties believe that appointment of a settlement judge pursuant
to 29 C.F.R. § 18.9(e) to assist in settlement negotiations
would
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be helpful, they may so petition the undersigned.
Schedule for remand proceedings
(1) The parties are directed to discuss the possibility of
stipulating an appropriate back pay award, and file a joint status
report on this discussion no later than the close of business on
February 16, 1996.
(2) The parties shall also have until February 16, 1996 to
complete any discovery relating to reasonable salary increases to
which the Complainant would have been entitled had he continued to
work for the Respondent between the time of his discharge by the
Respondent and his discharge by Merichem. No other discovery will
be permitted unless permission to inquire into other matters is
granted by this tribunal.
(3) Any proposed evidentiary supplement to the record shall
be submitted to the undersigned and opposing counsel no later than
the close of business on February 23, 1996. Any evidentiary
submissions other than those relating to salary increases shall be
accompanied by legal argument explaining why the record should be
reopened to receive that evidence. Replies to any evidentiary
submission shall be filed no later than the close of business on
March 1, 1996.
(4) The parties shall also file on or before March 1, 1996 a
joint stipulation of facts relating the back pay issue.
(5) The parties shall file briefs, limited to the back pay
issue presented on remand, on or before March 8, 1996. Briefs
shall not exceed twenty typewritten pages. Reply briefs will not
be permitted
The record in this matter is voluminous. Thus, all references
to the existing record must be made with as much precision as
possible. At a minimum, references shall include the Exhibit
Number and page number, or transcript page number.
This schedule will not be expanded except upon a showing of
exceptional circumstances.
SO ORDERED
At Washington, D.C.
_________________________
John M. Vittone
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Acting Chief Judge
JMV/trs
[ENDNOTES]
[1]
The Secretary has held that the complainant has the burden at the
original hearing of a whistleblower complaint to prove each
element of damage, and that a hearing record can be reopened to
supplement the proof of damages only in narrow classes of cases.
DeFord v. Tennessee Valley Authority, 81-ERA-1 (Sec'y Aug.
16, 1984); Pogue v. United States Dept. of the Navy, 87-
ERA-21 (Sec'y Apr. 14, 1994). Compare Tritt v. Fluor
Constructors, Inc., 88-ERA-29, slip op. at 3 n.2 (Sec'y Mar.
16, 1995) (Complainant given second chance to establish
entitlement to compensatory damages because he appeared pro
se and neither the ALJ nor opposing counsel asked questions
on that issue). I note too that a Respondent carries the burden
of proof on issues of lack of mitigation concerning back pay
awards. West v. Systems Applications International, 94-
CAA-15 (Sec'y Apr. 19, 1995). Accordingly, the Respondent also
carries the burden of making its record on the issue of damages
at the original hearing.
It is clear from the face of the Secretary's and Judge von
Brand's decisions that both Complainant and Respondent were
represented by counsel, that Complainant is a sophisticated
litigant who should understand the need to build a complete
record at a hearing, and that the issue of back wages was in fact
thoroughly litigated at the original hearing.
