Date: 6-19-96
Case No.: 85-CAA-1
In the Matter of:
Donald J. Willy,
Complainant
v.
The Coastal Corporation and Coastal States Management
Corporation,
Respondent.
Counsel:
J. Richard Hammett, Esq.,
For The Coastal Corporation
Marcheta Leighton-Beasley, Esq.,
For Coastal States Management Corporation.
Before:
Charles P. Rippey
Administrative Law Judge
ORDER RETURNING JURISDICTION TO THE SECRETARY FOR
CLARIFICATION
This matter is before me on remand from the Secretary of
Labor. Willy v. The Coastal Corp., 85-CAA-1 (Sec'y
June 1, 1994), motion for recon. den. (Sec'y July 13, 1995).
In the remand order, the Secretary determined that the Complainant
was fired as an in-house attorney for the Respondent in part in
retaliation for the Complainant's internal memorandum on
Respondent's alleged violations of environmental laws. The
administrative law judge who originally presided over this matter
had recommended against providing relief to the Complainant because
he lied during the hearing; however, the Secretary found that the
central purpose of the environmental whistleblower laws -- to
protect both whistleblowers and pubic health and safety -- "would
be frustrated
[PAGE 2]
if all relief were denied even though the Secretary has found a
violation." Slip op. at 24; see also slip op. at 26.
The Secretary remanded this matter to the Administrative Law
Judge, [T]o calculate back pay based on the difference
between what Complainant would have earned if he had continued to
be employed 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. [emphasis
added] Merichem Corporation was the Employer for whom the
Complainant worked following his discharge by the Respondent.
At the time of the remand, Judge von Brand had retired, and
the then Acting Chief Judge, John M. Vittone, issued an Order on
January 17, 1996 affording the parties an opportunity to attempt to
supplement the record and file briefs relating only to the back
pay issue presented on remand. The Complainant argued in a brief
that the environmental statutes involved in this matter mandate the
award of certain make-whole remedies, such as exemplary damages.
In an Order issued on March 27, 1996, Judge Vittone found the
Complainant's arguments well taken and afforded the parties
additional time to submit argument concerning other forms of relief
than back pay. He said in that Order:
Indeed, the Secretary's logic for not accepting Judge
von Brand's recommendation to deny all relief is grounded
in large part on the finding that the Department
of labor has no discretion not to order certain relief.
Thus, although the Secretary's June 1, 1994 order focused
almost exclusively on back pay, I find that it is
appropriate in this remand proceeding to permit the
parties to submit argument concerning other forms of
relief. [emphasis added]
In fact, the Secretary's remand order was not based upon a
finding that the Department had no discretion, but rather on a
finding that, even assuming DOL had discretion not to order certain
relief, denial of relief was inappropriate under the facts of the
case and the purposes of the environmental statutes.
However, the Secretary's reasoning that led him to find that
back pay should be awarded in this matter would apply with
equal force to exemplary damages. The Secretary's Order
does not discuss exemplary damages and confined his directive on
remand solely to the calculation of back pay, which cannot be
interpreted to include exemplary damages, when viewed against the
proper background that
[PAGE 3]
the Secretary had the discretion whether or not to go beyond back
pay in making the Complainant whole, rather than on the incorrect
presumption that the Secretary had no discretion not to order
certain relief.
Since the possibility of exemplary damages was not discussed
in the Secretary's Order it appears likely that it may not have
been in the mind of the Secretary at the time, and that the use of
the term back pay would not have been used had the Secretary had
in mind that the statutes in question here allow for exemplary
damages as well as back pay. However, since the Secretary used the
specific term back pay , it would be beyond my powers to say,
without any support from language in the Order, that he meant to
include monetary damages other than back pay, when he clearly had
the discretion to include the possibility of exemplary damages, if
he had intended to do so.
However, the fact that the Secretary's reasoning applies with
equal force to exemplary damages as well as back pay, leads me to
take the unusual step of returning this matter to the Secretary for
clarification of his remand order. It appears likely to me that if
I were to base my decision solely on back pay, which is the limit
of my authority, the Secretary would, more than likely, merely
send it back saying that he also wanted exemplary damages to be
considered, or that a Court of Appeals would find that the
Complainant had a right to have the possibility of exemplary
damages considered by the Secretary. This would cause even more
delay than to ask the Secretary to clarify his intent in order to
avoid another remand.
I want to the Complainant's attention here that:
1. The overtime and fringe benefit matters raised by the
Complainant would be included as part of pay to the
extent that they would be allowable;
2. the matter of interest due on any damages determined is
a matter wholly outside the question of the nature of the
damages to which the interest attaches; and
3. that attorney fees and expenses are not damages, and any
claim for those would have to be made by the attorney
rendering the services, not the Complainant, even though
any amounts which the Respondent would be ordered to pay
would inure to the Complainant to the extent he had made
payment for such amounts to his attorney.
[PAGE 4]
Finally, I call the parties attention to the fact that the
Secretary of Labor has delegated his responsibility for these
matters to the:
Administrative Review Board
United States Department of Labor
200 Constitution Avenue, N.W., Room S-4309
Washington, DC 20210
The file in this matter is being sent to that Board.
ORDER
Jurisdiction of this matter is hereby returned to the
Secretary for clarification of the remand order contained in his
Final Decision and Order issued on June 1, 1994.
________________________
Charles P. Rippey
Administrative Law Judge
Voice Phone 202-565-4042
Fax Number 202-565-5325
E-Mail CRippey@OALJ.DOL.GOV
Washington, D. C.
CPR:bdw:1757_4
