On August 30, 1990, Nochumson formally submitted for supervisory review a 13-page document entitled "Corrective Action Plan--Radiological Air Effluent Monitoring Program at the Los Alamos National Laboratory" (hereinafter referred to as the "Corrective Action Plan" or "the Plan"). CX 26. The Plan noted that the EPA and DOE requirements concerning the monitoring of radioactive effluents "are only being partially met because of the lack of available funding and staffing" and set forth eight specific steps that would have to be taken to bring the Laboratory's RAEM program into compliance with the requirements of Subpart H. Id. It was also projected that full compliance would not be achieved until 1998 and specifically stated that in order to achieve this goal qualified staffing and funding would be "essential." Id. at 13. In this regard, the plan suggested that three additional staff members and two additional technicians would be needed. Id. The Plan was thereafter reviewed and approved by various supervisors in the HSE Division, including Deputy Division Leader Ron Stafford. Id.

   In the months following the preparation of the Corrective Action Plan, Nochumson began to focus his attention on implementing the Plan. However, various documents prepared by Nochumson during this time period indicate that these efforts were frustrated by what Nochumson perceived to be a lack of funding and a lack of cooperation from some of the other organizational units at the Laboratory that had responsibility for various aspects of air emissions monitoring. See, e.g., RX 22, RX 57, RX 118, RX 145, CX 19, CX 28, CX 29, CX 34, CX 35. Thus, in what appears to have been an effort to convince his superiors to push for greater funding and cooperation, Nochumson began including statements in his written reports which emphasized the fact that the Laboratory's existing RAEM program was not in compliance with the EPA regulations. For example, in the minutes of an October 2, 1990 meeting Nochumson wrote that the lack of sufficient funding for implementing the Corrective Action Plan "puts the Lab at risk concerning noncompliance penalties and the associated public perception." CX 34 at 648. Likewise, in the first paragraph of an October 10, 1990 quarterly report to Andrews Nochumson stated that the Laboratory's RAEM program "has major deficiencies and is not in compliance with Federal laws and regulations." CX 35. He added that because of these deficiencies, "the quality and defensibility of the [radioactive emissions] measurement data are in question." Id.

   Nochumson's efforts to gain funding for Subpart H compliance, however, were not totally unproductive and he was apparently given assurances that Radian Corporation, a contractor that was doing a survey of non-radioactive air emissions for another group in HSE, would also be asked to expand its survey to identify sources of radioactive air effluents. CX 46. Likewise, $500,000 was set aside for other work related to the implementation of the Corrective Action Plan. RX 72, RX 187 at 13, RX 192, Tr. at 128.

   In December of 1990, Nochumson's complaints about a lack of adequate funding and a lack of coordination of compliance efforts were echoed in a draft of an internal audit of the Laboratory's environmental compliance programs. In particular, the report noted that the Laboratory's monitoring of radioactive air pollutants did not comply with federal regulations and that there was no "integrated and formal air quality management program" at the Laboratory. CX 45 at 722, 750-52. The report also noted that the groups in HSE that were aware of the regulatory requirements were "not adequately staffed or funded." Id. at 752.

   Despite the fact that Nochumson and others were pointing out that the Laboratory needed to allocate more resources to achieving compliance with Subpart H, in the Fall of 1990 the Laboratory's Fiscal Year 1991 budget for environmental compliance was actually cut by 14 percent rather than increased. RX 14. An internal memorandum describing this reduction specifically indicated that the budget reduction could result in "probable fines" for violating the provisions of Subpart H. RX 14 at 17th unnumbered page. In a memo dated January 30, 1991, Andrews estimated that the "budgetary shortfall" caused his section of HSE to be 29 people "short" of the estimated number of people needed to fulfill the section's responsibilities. RX 68. These budgetary shortfalls were apparently the result of decisions by the DOE not to fully fund various environmental compliance proposals, including the Laboratory's proposal for funding improvements in its RAEM program. See, e.g., RX 190, CX 133 at 2215.

   Laboratory documents indicate that at approximately this same time the Department of Energy was participating in discussions with the EPA concerning a possible Memorandum of Understanding ("MOU") that would extend the deadline for compliance with Subpart H for two years for all DOE-owned facilities. See RX 52, RX 53, RX 152. In a January 15, 1991 response to a request for comments on such a MOU, John Puckett, the Leader of the HSE Division, estimated that compliance with the stack monitoring requirement would cost the Laboratory $12 million and suggested that the MOU be amended to allow alternatives to stack monitoring such as "environmental measurements," i.e., ambient air monitoring. Id. See also RX 147, CX 51.

   As full funding for the Corrective Action Program began to appear less and less likely, Nochumson's complaints concerning the lack of funding became increasingly more frequent and outspoken. For example, in a December 21, 1990 revision to the Plan, Nochumson described the Laboratory's RAEM program as having "major deficiencies" that put the "quality and defensibility of the measurement data" in question. CX 52 at 1634. He added that the "low priority" given to the RAEM program had "caused inadequate staffing and funding." Id. The document also attributed the program's "low priority" to a lack of recognition of the problems with the program and with a "lack of external scrutiny and enforcement." Id. at 1634-35. Likewise, on February 5, 1991, Nochumson directed Mark Miller, a contractor who was doing work on a monthly report concerning air emissions, to add a footnote to the report which stated that "because of staffing limitations," the data in the report "may not be completely representative of radiological air effluent emissions" at the Laboratory. CX 57, Tr. at 140. The proposed footnote also listed five specific deficiencies Nochumson had identified in the existing RAEM program and concluded that the program "is not in compliance with US Environmental Protection Agency and US Department of Energy requirements." Id. The footnote concluded by observing that near-term funding would be insufficient to upgrade the program and alleging that such "lack of adequate funding appears to reflect the priority given to this program." Id.

   Such comments about the deficiencies in the Laboratory's RAEM program in turn generated conflicts between Nochumson and his immediate supervisor, Andrews. For instance, on February 6, 1991, Andrews gave Nochumson a hand-written note which criticized Nochumson's comparison of the Laboratory's radioactive air emissions monitoring practices with those described in a scientific paper about an incident in which excessive radioactive air emissions were discharged from a nuclear facility in Europe. RX 47. In concluding the note, Andrews wrote that Nochumson should have reviewed the paper more carefully before making the comparison to the Laboratory's RAEM system and added "[i]f you want to follow up on anomalies that might show up in out [sic] program, then great, but don't say our sampling is no good without evidence." Id. Similarly, on February 13 Nochumson received from Andrews an edited version of the proposed footnote that Nochumson had sent to Mark Miller on February 5. CX 58. Among other things, Andrews had deleted from the footnote Nochumson's language concerning staffing limitations, lack of adequate funding, and the priority given to the program by the Laboratory's management. Id. However, Andrews did not delete the language which stated that the RAEM program was not in compliance with EPA and DOE requirements. Id. According to Nochumson, before giving him the edited footnote Andrews told him that he was opposed to having any footnote at all. Tr. at 140.

   In any event, during the evening of that same day Buhl called Nochumson at home and asked him to prepare "some input" for a notification to EPA. Tr. at 134. Accordingly, Nochumson drafted a three-page memorandum to Buhl which contained recommended language for the EPA notification. CX 64. The language that Nochumson recommended contained a long list of what were characterized as "major deficiencies" in the Laboratory's RAEM program and concluded that as a result of these deficiencies the Laboratory's RAEM program was not in compliance with Subpart H. The recommended language also asserted that the deficiencies were so extensive that they produced "large uncertainties" concerning the accuracy of the Laboratory's emissions data and that consequently the Laboratory could "not reasonably demonstrate that it is in compliance with the [10 millirem] health standard" set forth in Subpart H. Id. It was also stated in the recommended language that the Laboratory would like to enter into a Federal Facilities Compliance Agreement (hereinafter "FFCA") with the EPA in order to establish a schedule for bringing its RAEM program into compliance with Subpart H. According to Nochumson, while he was working on this memo Andrews came to his office and told him that the problems with the RAEM program were not as severe as Nochumson thought and that the Laboratory did not need to make a non-compliance notification. CX 90 at 1867. Nochumson also alleges that on this same occasion Andrews told him that "management" had decided not to provide the resources necessary for compliance. Tr. at 134.

   On February 25 Nochumson sent his memo concerning the non- compliance notification to Buhl and provided copies to his superiors, including Andrews, Graf, Stafford, and Puckett. On the same day Graf and Andrews met with Nochumson and were highly critical of the memo. CX 90 at 1867, Tr. at 142-44. However, Nochumson alleges, Graf and Andrews were unable to rationally substantiate their criticisms. CX 90 at 1867-68, Tr. at 143. In contrast, in an entry in his work diary dated February 26, 1991, Graf wrote that although he had "encouraged" Nochumson "to evaluate the Laboratory's radioactive stack emissions monitoring program fairly and honestly" Nochumson "seems bent on destroying before improving it." RX 24. Graf also noted that he had suggested that Nochumson conduct "a simple experiment" concerning an alleged problem with some of the Laboratory's stacks but that Nochumson "rejected the idea by bringing up all kinds of complicating factors." Id. Graf also wrote, "[i]t makes progress difficult when the person assigned to work a problem won't do the simple cost effective things while holding out for a very expensive research grade program and wants to notify EPA of program deficiencies so as to ensure funding for his research." Id.

   According to various statements in the record, at some point during February or March of 1991 Nochumson disclosed to Andrews and Graf that he had consulted an unidentified friend at the EPA about the Laboratory's non-compliance with Subpart H and had been told that the Laboratory should seek to enter into a FFCA with the EPA. Tr. at 130 (Nochumson testimony), Tr. at 792 (Andrews testimony), RX 187 at 15. The evidence also shows that the friend at EPA was David Shapiro, a graduate school classmate of Nochumson's, who is now the Deputy Assistant Administrator of the EPA's Office of Air and Radiation.

Tr. at 126-31, CX 176. In a deposition, Shapiro confirmed that Nochumson had contacted him at least "a dozen" times about the Laboratory's non-compliance with Subpart H and expressed concerns about his personal liability for the violations. Id. According to Shapiro, on a number of occasions Nochumson also complained of being harassed. Id. According to Nochumson, Shapiro told him that individuals could be criminally prosecuted if they were involved in submitting false air emissions reports to the EPA. Tr. at 367-68. As a result of this, Nochumson testified, he felt personally vulnerable. Tr. at 371.

   On March 15, 1991, Nochumson sent a memorandum to two co-workers (Mark Miller and Rick Brake) concerning the 1990 annual and monthly statistical reports of radioactive airborne effluents. CX 67. In the memo, which was also sent to Andrews and Graf, Nochumson directed that the following footnote be added to each monthly report:

   Based upon an assessment in progress, LANL's radiological air effluent monitoring program is not in compliance with US Environmental Protection Agency and US Department of Energy requirements.... Because of the noncompliance problems that have been identified, the data in this report is not completely representative of radiological air effluent emissions at LANL.

approval of the SRI contract would be "vital in order for LANL to make substantive progress to come into compliance and .... in order to demonstrate that LANL is making a 'good faith' effort" in this matter. In addition, the memo described the Laboratory's lack of compliance with Subpart H as a matter of "public concern." Id.

   In the second memo, which was also dated April 4, Nochumson complained to Craig Eberhart (hereinafter "Eberhart"), a section leader in another part of the HSE Division, that Eberhart had reneged on his agreement to have Radian Corporation perform a survey of the Laboratory's various sources of radioactive air emissions at the same time that it performed a Laboratory-wide survey of non-radioactive emissions. CX 155. Like the memo to Jim Nesmith, this memo contained a statement about the Laboratory's lack of compliance with Subpart H, the resulting "public concern," and the Laboratory's need to show EPA that it was making a good faith effort toward coming into compliance. In concluding the memo, Nochumson wrote "I hope that you will honor the original agreement to have Radian Corporation provide all of the information, as previously requested and agreed upon." Id.

were most of the people taken off of the distribution list?" CX 77, Tr. at 159. According to Nochumson, Andrews later told him that he had directed that the other names be deleted. Tr. at 159.

In an apparent response to this memo, on May 7 Andrews spoke with Deanne Phillips (hereinafter "Phillips"), a section leader in the Employee Relations Counselling Section of HRD. RX 136, Tr. at 827, 833-38. According to notes made by a subordinate of Phillips, Andrews had requested the meeting because he had a "staff member who has been exhibiting performance problems for about six months." The following five specific types of "performance problems" were listed in the notes: (1) "speaking for the

group when [he] has no authority," (2) "accusing S.L. [Section Leader Andrews] & G.L. [Group Leader Graf] of hiding things from EPA and DOE," (3) complaining that Andrews "harasses" him, (4) responding "I don't see it that way" when confronted, and (5) refusing a request to make changes in the contents of a report. RX 136.

its funding would be transferred to HSE-8, but that none of the people assigned to the program would transferred with it. CX 85, RX 153 at 144, Tr. at 652. In addition, Stafford told Nochumson that he would be reassigned to the Radiological Engineering Section in HSE-12. Id., Tr. at 175. Only a month before, however, Stafford had told Nochumson that if the RAEM program were moved to HSE-8, Nochumson would have the option of moving with the program or staying in HSE-1. RX 153 at 47, Tr. at 650.

   On the day after his conversation with Stafford Nochumson spoke with Tom Gunderson (hereinafter "Gunderson"), the Deputy Division Leader in charge of HSE-8, about possibly transferring to HSE-8 along with the RAEM program. RX 187 at 44-45. Gunderson told Nochumson that he would have to speak with Ken Hargis (hereinafter "Hargis"), the Group Leader for HSE-8. Tr. at 176. When Nochumson did so, Hargis was, in Nochumson's words, "visibly angry" and said that he did not want Nochumson in his group because he did not like Nochumson's memo concerning Eberhart's alleged failure to honor the agreement on the Radian Corporation survey and because he didn't like Nochumson's practice of talking to DOE officials in Albuquerque. Tr. 176-77. It thus appeared to Nochumson that he would no longer be allowed to work on the RAEM program. Nochumson described this prospective change in his work assignments in a June 18, 1991 summary of "Acts of Discrimination" and gave it to a Department of Labor investigator on July 3, 1991. CX 90, Tr. at 885-87.

   On June 13 Stafford met with Graf, Andrews, and Nochumson concerning Nochumson's complaints. RX 85. At the meeting it was apparently agreed that the two memos on which Andrews had limited the distribution would be distributed to the persons on the original distribution lists. Id. Stafford's notes of the meeting also indicate that he asked Nochumson what he wanted to do when the Health Physics Function was reorganized and suggested that Nochumson select something that would "make him happy" and be helpful to the Laboratory. Id.

   Although the transfer of the RAEM program was initially scheduled to take place on July 1, sometime in the latter part of June the transfer date was indefinitely postponed, possibly for the purpose of giving Gunderson more time to learn about the program. CX 97 at 1933, Tr. at 654. By this time, however, Andrews had resigned as the leader of Nochumson's section. Tr. at 118, CX 98, RX 110. On July 9, Nochumson was told by Graf that his new supervisor would be Bill Eisele (hereinafter "Eisele"). RX 153 at 190, Tr. at 653-54. At that time Eisele was the acting section leader of a section that had not yet been given a title. RX 153 at 190. Graf also told Nochumson that he was, nonetheless, still assigned to the RAEM program. RX 153 at 193, Tr. at 654. The next day Nochumson met with Eisele and told him that he "did not wish to continue to work on the RAEM program." RX 153 at 195, Tr. at 655-56. According to Nochumson, he made this statement because he was "under a lot of stress" as a result of "the acts of harassment" and "couldn't take it anymore." Tr. at 656. Nochumson also asserted that by this time he had already been "excluded from important meetings" and "effectively removed" from his role in the program. Tr. at 117-18, 656. He also testified that at this time he thought his job was "in jeopardy" and that his only option in terms of keeping his job was to get out of the RAEM program. Tr. at 657-59. Likewise, on July 11, Nochumson called Stafford and said that he did not wish to continue working on the RAEM program. Id., RX 153 at 199. According to Nochumson, he also told Stafford that he did want to continue working under Eisele, but on some other type of assignment. Tr. at 658. Stafford's notes of the conversation indicate that Nochumson gave two reasons for his decision to stop working on the RAEM program: the Laboratory's lack of support for the program and dissatisfaction with the way in which he had been treated. Id.

but noted that because of the "high quality" of the Laboratory's ambient air monitoring program, "it may well be possible for a competent auditor to verify that LANL is in compliance" with the 10 millirem exposure limit of Subpart H. Id.

   In November of 1991 the DOE released the multi-volume report of the "Tiger Team" that had conducted an extensive review of the Laboratory's environment, safety and health program. RX 199. The report's executive summary stated that among the "key areas of concern" at the Laboratory was "inadequate identification, monitoring, and control of effluent releases." CX 131 at 2195. The report listed 12 specific deficiencies in the Laboratory's RAEM program and noted that the list was "not meant to be all inclusive." CX 127 at 2147-50. During the same month Stafford met with various DOE officials in the Washington D.C. area and at that time indicated that the Laboratory was then estimating that the cost of complying with Subpart H would be approximately $750,000 per stack and total over $100 million. CX 129.

   C. Evidence of Independent Psychological Stress on Nochumson

   The record also shows that during the entire period that Nochumson worked as the RAEM manager the stresses of his job were compounded by the fact that his wife was undergoing treatment for what ultimately proved to be terminal cancer. The cancer was initially diagnosed while Nochumson, his wife, and their two children were on a sabbatical in Israel in the summer of 1989. Tr. at 374. As a result of the diagnosis they returned to Los Alamos and Nochumson's wife began undergoing cancer treatments. Id. These treatments were initially successful and the cancer went into remission. However, in September of 1990 the cancer reappeared and Mrs. Nochumson had to go to the Boston area to undergo a prolonged program of preparation for a bone marrow transplant. Tr. at 374-82. Nochumson remained in Los Alamos and assumed primary responsibility for the care of his two children, both of whom were then under ten years of age. Id.

   About a month before the September 1990 relapse, Nochumson had begun receiving psychological counselling from Linda Dutcher, Ph.D., a clinical psychologist who practices in the Los Alamos area. Tr. at 180, 322-23. The counselling was originally prompted by marital problems between Nochumson and his wife and by Nochumson's desire to improve his interpersonal communications skills, but because of the relapse in his wife's condition, much of the counselling soon began to focus on Nochumson's anxieties about his wife's health. Tr. at 322-23. Later on, the counselling also focused on job-related anxieties. Tr. at 323-25. At about this same time Nochumson also began taking a prescription medication for anxiety. Tr. at 383- 85, RX 167. In addition, Nochumson's children began seeing a psychologist to help them cope with the stress of their mother's illness. Tr. at 386. In March of 1991 Nochumson's wife underwent the bone marrow transplant, and in May returned to Los Alamos. Tr. at 387-88, 484. It initially appeared that the bone marrow transplant had been successful, but Mrs. Nochumson was experiencing side effects from her treatments that made her angry and irritable. Tr. at 389, 484. This anger and irritability apparently aggravated pre-existing marital stresses and in the fall of 1991 Nochumson decided to ask his wife for a divorce. Tr. at 180, 380. However, shortly thereafter, there was a second relapse in Mrs. Nochumson's condition and she died in December of 1991. Tr. at 389.

   A short while after learning about his wife's second relapse, Nochumson began receiving treatment from Dr. Jeffrey Ross, a psychiatrist. Tr. at 288-90. On October 25, 1991, Dr. Ross sent a note to the Laboratory which stated that he had advised Nochumson to take sick leave for as long as several months in order to help him recover from what Dr. Ross described as "an adjustment reaction to situational stress." CX 123. On the same date Nochumson advised Eisele that he would be taking sick leave and taking his children to Rhode Island, where his wife was then residing. RX 137. Shortly after Nochumson's wife died, he returned to New Mexico with his children. However, based on the recommendation of Dr. Ross, he remained off work until November of 1992, when he resumed working on a part-time basis. Tr. at 182, RX 174, RX 178. After returning to work in 1992 Nochumson was assigned to instruct other Laboratory workers on matters related to nuclear safety, a job which he finds enjoyable but less challenging than his prior job assignment. Tr. at 115-16. According to Dr. Ross, at least some of the psychiatric problems that prevented Nochumson from returning to work before November of 1992 were related to the stresses of his job. Tr. at 297-99, RX 179, RX 176, RX 177. Nochumson himself attributes about 60 percent of his disability to work-related stress, but Dr. Ross testified that he cannot assign any particular percentages to the various causes of the disability. Tr. at 181-82 (Nochumson testimony), Tr. at 316-18 (testimony of Dr. Ross).

motives. In such a case, the burden of proof then shifts to the respondent to show by a preponderance of the evidence that it would have taken the same action with respect to the complainant even in the absence of the employee's protected conduct. Guttman v. Passaic Valley Sewerage Commission, 88-WPC-2 (March 13, 1992), aff'd sub nom. Passaic Valley Sewerage Commissioners v. U.S. Dep't of Labor, 992 F.2d 474 (3rd Cir. 1993); Darty v. Zack Company, Case No. 80-ERA-2, Decision and Order, April 25, 1983. See also Mt. Healthy City Board of Education v. Doyle, 429 U.S. 274 (1977); NLRB v. Transportation Management Corp., 462 U.S. 393 (1983).

   A. Nochumson's Prima Facie Case

   As explained above, in order to establish a prima facie case a complainant must show: (1) that he engaged in protected activity, (2) that the respondent knew of the protected activity, (3) that the respondent took adverse action against him, and (4) that the protected activity was the likely reason for the adverse action. For the reasons set forth below, I find that the claimant has made all four of these showings.

   1. Protected Activities

   The employee protection provisions of the Clean Air Act focus primarily on employees who commence or participate in formal enforcement proceedings and do not explicitly refer to employees who merely make intra-corporate complaints about possible Clean Air Act violations. See 42 U.S.C. §7622(a). However, the Secretary of Labor has determined that these provisions and similarly-worded provisions of comparable statutes should be broadly interpreted so as to also protect those employees who make only internal complaints. Although the Fifth Circuit has disagreed with this determination, Brown & Root, Inc. v. Donovan, 747 F.2d 1029 (5th Cir. 1984), courts of appeals in at least six other circuits, including the Tenth Circuit, have upheld the Secretary's interpretation of such statutes. See, e.g., Consolidated Edison Co. v. Donovan, 673 F.2d 61 (2nd Cir. 1982) (implicit); Passaic Valley Sewerage Commissioners v. Department of Labor, 992 F.2d 474 (3rd Cir. 1993); Jones v. Tennessee Valley Authority, 948 F.2d 258, 264 (6th Cir. 1991); Couty v. Dole, 886 F.2d 147 (8th Cir. 1989) (implicit); Mackowiak v. University Nuclear Systems, Inc., 735 F.2d 1159, 1163 (9th Cir. 1984); Pogue v. United States Department of Labor, 940 F.2d 1287, 1289 (9th Cir. 1991); Kansas Gas & Electric Co. v. Brock, 780 F.2d 1505, 1513 (10th Cir. 1985).

   The Secretary has also broadly defined the types of internal complaints that are considered to be protected activities under the Clean Air Act and similar statutes. For instance, the Secretary has held that "mere questioning" of safety procedures is tantamount to an internal complaint and therefore a protected activity. Nichols v. Bechtel Construction, Inc., Case No. 87-ERA-44, Decision and Order of Remand, Oct. 26, 1992. Likewise, the Secretary has held that all employees who are engaged in quality control functions are engaged in protected activities. Bassett v. Niagara Mohawk Power Company, Case

No. 86-ERA-2, Order of Remand, July 9, 1986. Similarly, the Secretary has also held that an alleged violation of the Clean Air Act does not have to comprise the only or even predominant subject of a complaint, and that an internal complaint will be regarded as a protected activity so long as it at least "touches on" compliance with the Act. Scerbo v. Consolidated Edison Company, Case No. 89-CAA-2, Decision and Order, Nov. 13, 1992. The Secretary has also held that an internal complaint need not be shown to be meritorious in order to entitle an employee to the protection of a whistleblower statute. Id., see also Yellow Freight System, Inc. v. Martin, 954 F.2d 353, 356-57 (6th Cir. 1992). Rather, such an internal complaint need only be based on a reasonable perception of a violation. See Johnson v. Old Dominion Security, Case No. 86-CAA-3, Decision and Order, May 29, 1991. Finally, the Secretary has held that the act of filing a whistleblower complaint is in itself a protected activity. McCuistion v. Tennessee Valley Authority, Case No. 89-ERA-6, Decision and Order, Nov. 13, 1991.

   This case arises in the Tenth Circuit. Accordingly, if Nochumson can show that he made a complaint, either internally or to a law enforcement agency, that in some way touched upon a reasonably perceived violation of the Clean Air Act, he will have established that he engaged in an activity that is protected under the whistleblower provisions of the Clean Air Act. From the record, it is abundantly clear that Nochumson has in fact satisfied this burden. Indeed, the record shows that over a period of approximately six months Nochumson repeatedly made various types of internal complaints concerning the nature of the Laboratory's compliance with the requirements of Subpart H. As well, the record also shows that he unquestionably engaged in two other types of protected activity: he made his complaints known to an official of the EPA and he filed a whistleblower complaint with the Department of Labor.

   2. Respondent's Knowledge of the Protected Activities

   The second element of a prima facie case requires proof that the respondent was aware of a complainant's protected activities prior to the occurrence of the alleged retaliatory acts. This requirement has also been clearly satisfied. In addition to showing that Nochumson's supervisors were fully aware of his various internal complaints, the record also shows that these supervisors knew of Nochumson's contacts with the EPA and were aware of the fact that he had filed a whistleblower complaint with the Department of Labor.

   3. Adverse Actions

held that disciplinary or warning letters that serve to progress an employee toward suspension or discharge are also adverse actions. Helmstetter v. Pacific Gas & Electric Co., Case No. 86-SWD-2, Final Decision and Order, Sept. 9, 1992. In addition, it has been held that transferring an employee to a less desirable job can amount to an adverse action. DeFord v. Secretary of Labor, 700 F.2d 281, 283, 287 (6th Cir. 1983). Finally, it has been held that it is an adverse action to create a "hostile work environment." English v. Whitfield, 858 F.2d 957, 963 (4th Cir. 1988) (holding that when a supervisor harasses a subordinate because of the subordinate's protected conduct, the supervisor discriminates on the basis of the protected conduct); Scerbo v. Consolidated Edison Company, Case No. 89- CAA-2, Decision and Order, Nov. 13, 1992.

    In this case, Nochumson alleges that the Laboratory engaged in a variety of different adverse actions against him, including harassment. The Laboratory, on the other hand, in effect contends that it did not engage in any type of activity that can be justifiably characterized as an adverse action.

   The various activities that could conceivably constitute adverse actions fall into essentially the following seven categories: (1) the repeated criticisms by Andrews and Graf of Nochumson's views concerning the Laboratory's RAEM program, (2) the attempt to have Nochumson participate in dual advocacy mediation, (3) Andrews' statement's concerning his ability to abolish Nochumson's job, (4) the limitations on Nochumson's ability to directly send memos to other Laboratory employees, (5) the "performance improvement" memo sent to Nochumson on May 10, 1991, (6) Puckett's expression of "disappointment" and "frustration" with Nochumson's decision to file a whistleblower complaint with the Department of Labor, and (7) the Laboratory's refusal to allow Nochumson to transfer to HSE-8 along with the RAEM program.

   In view the existing case law, I find that the first two categories of possible adverse actions do not come within the Secretary's definition of an adverse action, but that the activities within latter five categories do constitute adverse actions.

   The second category of possible adverse actions concerns the attempt by Graf and Andrews to have Nochumson participate in dual advocacy mediation. The evidence is convincing that, in general, the dual advocacy mediation process is not a disciplinary procedure and is instead a mechanism for making a good faith effort to reduce conflicts between co-workers by having both parties invest time and effort in discussing the nature of their disputes with counsellors and with each other. Such a process does not cause any diminution in the terms and conditions of employment. Accordingly, an effort to have an employee participate in such a process cannot be regarded as a form of adverse action. Indeed, the Secretary has reached this same conclusion in a recent case in which an employee was even required to undergo a medical examination as part of an Employee Assistance Program referral. Mandreger v. The Detroit Edison Company, Case No. 88-ERA-17, Decision and Order, March 30, 1994 (slip opinion at 14, 16).

As previously explained, this memo was highly critical of many aspects of Nochumson's work performance. It therefore constitutes a disciplinary or warning letter and must be regarded as a form of adverse action against Nochumson. See Helmstetter, supra.

   Sixth, it is arguable that Puckett's expression of "disappointment" and "frustration" with Nochumson's whistleblower complaint to the Department of Labor constituted a type of adverse action. Although during the hearing Puckett testified that he didn't "blame" Nochumson for filing the complaint and was only "disappointed" that the Laboratory's internal resources were not used to try to resolve Nochumson's complaint, the memo to file that Puckett wrote about his June 7, 1991 meeting with Nochumson indicates that at the meeting he in effect directly criticized Nochumson for filing the complaint. Tr. at 597-98, RX 103. In particular, Puckett's memo states that he told Nochumson that he was "very frustrated with this action" and that he found it "very, very disappointing" that Nochumson was "not willing" to follow the Laboratory's internal procedures for resolving disputes of this nature. RX 103. The Secretary has recently held in a case involving a very similar fact situation that such critical comments about an employee's decision to file a whistleblower complaint constitute a form of intimidation or harassment. Mandreger, supra, (slip opinion at 19, 21 n. 4). Since I am bound by the Secretary's interpretation of the Act, I therefore find that Puckett's comments criticizing Nochumson for filing a whistleblower complaint amounted to an adverse action.

   The seventh possible adverse action was the Laboratory's never- implemented decision to not allow Nochumson to transfer to HSE-8 along with the RAEM program. According to the evidence, even though Nochumson had been told by Stafford in May of 1991 that he would be able to transfer to HSE-8 along with the RAEM program, two days after Nochumson filed his whistleblower complaint he was told that he would not be transferred with the RAEM program and that he would instead be reassigned to an unspecified job in the Radiological Engineering Section. CX 85, RX 153 at 47 and 144, Tr. at 652. As well, the evidence shows that the manager of HSE-8 explicitly refused Nochumson's subsequent request to be allowed to transfer into that section along with the RAEM program. As previously explained, an involuntary transfer of an employee to a less desirable job constitutes a form of adverse action. The transfer of Nochumson's job to another section and the other section leader's rejection of Nochumson's request to be allowed to transfer along with the job clearly amounts to an involuntary transfer. Thus, the only question is whether the other job to which Nochumson was to be transferred was less desirable than Nochumson's job as the RAEM manager. Although it appears that the salaries of staff members at the Laboratory are not directly related to their specific job assignments and that therefore the assignment to the Radiological Engineering Section would not have resulted in any diminution of Nochumson's salary, the record is otherwise silent concerning the relative desirability of the new assignment. Indeed, the testimony on this matter suggests that Nochumson's new duties had not in fact been defined by anyone and that they would not have been revealed to him until after he actually arrived in the Radiological Engineering Section. It is therefore difficult, if not impossible, to determine if the new job was less desirable than the RAEM manager's job. However, Nochumson's attempt to

    4. Inference of a Causal Connection Between the Protected Activity and the Adverse Action

    In order to establish the fourth and final element of a prima facie case a complainant must present evidence sufficient to raise the inference that the complainant's protected activity was the likely reason for the adverse action or actions. The motives for adverse actions against employees are necessarily subjective and for this reason it is rare that there is direct evidence of any connection between an employee's protected activities and an adverse action against the employee. However, it is well established that such a connection can be proven by circumstantial evidence. See, e.g., Ellis Fischel State Cancer Hospital v. Marshall, 629 F.2d 563, 566 (8th Cir. 1980); Mackowiak v. University Nuclear Systems, Inc., 735 F.2d 1159, 1162 (9th Cir. 1984). Thus, for example, it has been held that the proximate timing of the protected conduct and the adverse action can be sufficient to raise the inference of causation. Jim Causley Pontiac v. NLRB, 620 F.2d 122, 126 (6th Cir. 1980). See also Donovan v. Stafford Construction Co., 732 F.2d 954, 960 (D.C. Cir. 1984); Burrus v. United Telephone Co. of Kansas, Inc., 683 F.2d 339, 343 (10th Cir. 1982); NLRB v. American Geri-Care, Inc., 697 F.2d 56, 60 (2nd Cir. 1982).

    In this case, the evidence shows a strong connection between Nochumson's protected activities and the adverse actions against him. This evidence is both circumstantial and direct.

   The circumstantial evidence of a causal relationship between Nochumson's protected activities and the adverse actions is of two types. First, there is a close temporal relationship between many of Nochumson's protected activities and the adverse actions. For example, both of Andrews' statements about possibly abolishing Nochumson's position occurred during periods when Nochumson was expressing doubts about the safety of the Laboratory's RAEM program and complaining about the Laboratory's efforts to come into compliance with the requirements of Subpart H. Likewise, only a short time after Nochumson had written a series of memoranda that implied that the Laboratory was not making a "good faith" effort to comply with the requirements of Subpart H, Nochumson was given a "performance improvement" memo and told that the distribution of his internal memoranda was being curtailed. There is also a close temporal relationship between Nochumson's protected activities and the Laboratory's decision to refuse to allow Nochumson to transfer to HSE-8 along with the RAEM program. In fact, Nochumson was told of this decision within a matter of hours after he informed his supervisor that he had filed a whistleblower complaint. RX 153 at 140-45.

    The second type of circumstantial evidence of a causal relationship is the evidence that demonstrates that both Andrews and Graf vigorously disputed Nochumson's complaints about the Laboratory's RAEM program and repeatedly cautioned him against repeating such complaints. For instance, when Nochumson alleged that the RAEM program's deficiencies raised potential safety problems, Andrews disputed the allegation and warned Nochumson such statements could end up in the newspapers. Andrews' dissatisfaction with

    Second, the Laboratory relies on evidence that is alleged to demonstrate that the various adverse actions taken against Nochumson were in fact prompted by Nochumson's undiplomatic communications style and psychological problems. For example, the Laboratory points to evidence that shows that even after being told by his supervisors not to include gratuitous remarks in his written reports, Nochumson persisted in making such remarks, e.g., comments critical of the alleged failure of HSE-8 to honor a commitment to have Radian Corporation do a survey of sources of radioactive air emissions. Likewise, Graf's testimony indicates that Nochumson in effect refused to perform what Graf described as a "simple experiment." There is also evidence that Nochumson occasionally included sarcastic remarks in his written memoranda. For example, on one occasion Nochumson wrote that the lack of funding for RAEM program improvements "appears to reflect the priority given to this program." The Laboratory also emphasizes that two of Nochumson's prior supervisors had criticized Nochumson for such behavior in their formal evaluations of his performance. See RX 36 at 1, RX 78 at 4. In addition, the Laboratory points out that during the entire period that Nochumson was the RAEM manager, he was under severe stress that was related to his wife's terminal cancer. This stress, the Laboratory argues, created anxieties and other psychological problems that became so intense that by February of 1991 Nochumson had begun to entertain various paranoid thoughts, such as fears that he was being followed or in danger of a physical attack.

    Third, the Laboratory contends that the adverse actions against Nochumson were also justified by his failure to properly perform his assigned duties. In particular, Graf testified that Nochumson was deficient in performing his job because he had failed to prepare emissions reports in a timely manner, neglected to produce stack-by-stack cost estimates for achieving compliance with Subpart H, and attempted to get other Laboratory workers to do work that he should have done himself.

   In view of the foregoing evidence, I find that the Laboratory has made a showing that is sufficient to meet its burden of producing evidence of lawful motives for the adverse actions. See St. Mary's Honor Center v. Hicks, ___ U.S. ___, 113 S. Ct. 2742 (1993). Accordingly, it is necessary to weigh all of the relevant evidence in order to determine if the adverse actions were in fact in violation of the Clear Air Act.

   C. Conclusions Concerning the Motives for the Adverse Actions Against Nochumson

   At this stage of the analysis, Nochumson can prevail if the preponderance of the evidence shows either that the reasons given by the Laboratory for the adverse actions against him were a mere pretext or that his protected activities were the more likely reason for the adverse actions. Alternatively, Nochumson can prevail if he can show that his protected activities were at least one of the motivating factors in the adverse actions and the Laboratory thereafter fails to show by a preponderance of the evidence that it would have taken the same actions even in the absence of the protected activities. In short, in such a "dual motives" case, the employer bears the risk that the influence of the legal and illegal motives cannot be separated. Pogue v. U.S. Department of Labor, 940 F.2d 1287, 1291 (9th Cir. 1991).

   After considering all of the relevant evidence, I conclude that although the adverse actions against Nochumson were motivated in part by the legitimate reasons, they were primarily motivated by Nochumson's protected activities (i.e., his internal complaints, his unauthorized contact with the EPA, and his whistleblower complaint) and would not have occurred in the absence of those activities. There are four principal reasons for this conclusion.

    First, as already explained, there is a substantial amount of circumstantial and direct evidence indicating that all of the adverse actions against Nochumson were at least partially inspired by his protected activities. This evidence includes various written and oral statements that were made by Andrews, Graf, and Puckett as well as the inferences of causation that can be drawn from the close temporal relationships between the protected activities and the various adverse actions. Indeed, the circumstantial evidence of a causal relationship between Nochumson's protected activities and the decision to not allow him to continue in his job as the RAEM manager after the program was to be transferred to another section is particularly strong.

    Second, the evidence does not convincingly support the Laboratory's contention that there were no material disputes between the Laboratory's management and Nochumson concerning matters that are within the scope of the Clean Air Act. Rather, the evidence shows that even though the Laboratory was willing to freely admit that it was not in full compliance with the requirements of Subpart H, it still had substantial disagreements with Nochumson on a series of important issues.

    Most importantly, there was a disagreement concerning the manner in which the non-compliance should be characterized. In Nochumson's view, the system's various failures to comply with the regulatory requirements were so extensive that they amounted to "major deficiencies" and thereby created "large uncertainties" concerning the reliability of the data produced. In contrast, Graf and Andrews believed that the existing system was basically reliable even if it was not in full compliance with all of the technical requirements of Subpart H and that the data produced was therefore essentially accurate.

    In addition, there was a related disagreement concerning the safety implications of the non-compliance with Subpart H. On one hand, the Laboratory's management felt that the Laboratory's system of ambient air monitoring provided adequate assurances that the Laboratory's emissions were within the 10 millirem standard, even if its stack monitoring system did not accurately measure the emissions from each individual stack. On the other hand, Nochumson felt that the ambient air monitoring system had limitations and that therefore the deficiencies in the stack monitoring system created a risk that the Laboratory would unknowingly exceed the 10 millirem standard, thereby potentially endangering the health of Los Alamos area residents.

    There was also a major disagreement between the Laboratory's

    Fourth, the evidence indicates that the Laboratory has failed to meet its burden of showing that the adverse actions against Nochumson would have been taken even if he had not engaged in protected activities. In this regard, the Laboratory has contended in essence that there were at least two legitimate sources of dissatisfaction with Nochumson that justified the adverse actions: Nochumson's alleged personality problems and Nochumson's alleged failure to fulfill all the responsibilities of his job. However, careful review of the evidence suggests that neither of these alleged deficiencies would have resulted in adverse actions against Nochumson if he had not engaged in protected activities.

communication cannot fairly be described as unusually offensive. For example, he did not utilize obscenities or engage in name calling. Indeed, Nochumson's communications style did not appear to be any more direct or outspoken than some of the statements made to Nochumson by his superiors. It should also be noted that even though the Laboratory has alleged that Nochumson repeatedly offended other Laboratory employees while working as the RAEM manager, its specific examples of such offensive conduct are very limited. Indeed, there is little more to substantiate this assertion than the memo that he wrote about HSE-8's failure to honor its agreement and the memo inquiring about the delay in issuing the Southern Research Institute contract. Finally, the assertion that the dissatisfaction with Nochumson stemmed more from his style than from the substance of his ideas has be discounted because virtually every conceivable example of an allegedly objectionable communication consists of a document in which Nochumson expressed opinions about the RAEM program that differed from those advocated by his superiors. This is particularly true of the memo concerning the agreement with HSE-8 and the memo concerning the Southern Research Institute contract. Such evidence suggests that any alleged "personality" problem was for the most part reducible "to the problem of the inconvenience [the complainant] caused by his pattern of complaints." Passaic Valley Sewerage Commissioners v. Department of Labor, 992 F.2d 474, 481 (3rd Cir. 1993).

Nochumson's complaints about the RAEM program's non-compliance with the requirements of Subpart H. In short, the evidence indicates that Andrews and Graf were far more concerned about Nochumson's criticisms of the RAEM program than they were about Nochumson's lack of work on the emissions reports or his failure to produce stack-by-stack cost estimates.

   The second reason for rejecting the Laboratory's allegations about Nochumson's alleged performance deficiencies is the fact that the totality of the record, including the many documents Nochumson generated while he was the RAEM manager and Nochumson's prior performance evaluations, suggests that Nochumson was in fact a conscientious employee who was doing his best under trying circumstances to fulfill the responsibilities of his job. Indeed, Nochumson credibly testified that it would have been impossible for him to have prepared stack-by-stack cost estimates because such estimates would have required expenditures of over $1 million and necessitated "a lot" of staff support. Tr. at 439. Likewise, it appears from Nochumson's testimony that any delays in the preparation of emissions reports were attributable to work on higher priority assignments and to the general understaffing of the RAEM program. Tr. at 892-97.

   In sum, therefore, I find that the adverse actions against Nochumson were primarily motivated by Nochumson's protected activities and would not have occurred in the absence of these protected activities. These adverse actions were therefore in violation of the Clean Air Act.

   D. Remedies

   In the event that an employer is found to have violated the whistleblower provisions of the Clean Air Act, the Secretary of Labor is empowered to order appropriate remedies, including job reinstatement and the payment of damages. 42 U.S.C. §7622(b)(2)(B). In this case, Nochumson seeks an offer of reinstatement to his former position, restitution for various financial losses, and compensatory damages for emotional distress. He also seeks an order requiring the Laboratory to expunge negative comments from his personnel records and to give him a positive performance appraisal for the period that he was the RAEM manager. In addition, he wants the Laboratory to be required to (1) publicly post a notice of the relief granted in this case, (2) notify all witnesses that it would be illegal to retaliate against them for testifying in connection with this proceeding, and (3) cease using its Employee Assistance Program as a tool for retaliating against whistleblowers. Finally, Nochumson asks that the Laboratory be required to pay his costs and attorney's fees.

    1. Entitlement to Reinstatement

    If the Laboratory had removed Nochumson as the RAEM manager over his objections, it is clear that he would have been entitled to be reinstated into that job. However, the evidence shows that although Nochumson had been told that the RAEM program would be reassigned to another section into which he could not transfer, that reassignment never occurred, and that ultimately Nochumson did not stop working on the RAEM program until after he told

his supervisors that he no longer wished to work on the program. Accordingly, Nochumson is entitled to reinstatement into his former job only if, as he in effect alleges, he was "constructively discharged" as the RAEM manager.

   The Tenth Circuit has held that a constructive discharge occurs when an "employer by its illegal discriminatory acts has made working conditions so difficult that a reasonable person in the employee's position would feel compelled to resign." Derr v. Gulf Oil Corp., 796 F.2d 340, 344 (10th Cir. 1986). The court in Derr also held that an employer's intent is irrelevant in determining whether such a constructive discharge has occurred. Id. In considering cases involving allegations that a complainant was constructively discharged, the Secretary has noted that a single instance of discriminatory conduct is not sufficient by itself to prove a constructive discharge but that a constructive discharge can be found when there are "aggravating factors" such as a pattern of discriminatory treatment. Johnson v. Old Dominion Security, Case No. 86-CAA-3, Final Decision and Order, May 29, 1991. Thus, for example, in Johnson the Secretary noted that a constructive discharge could be found when there was evidence that an employee had

endured a pattern of abuse by his immediate supervisor, the supervisor repeatedly had refused to provide him with guaranteed job training, the confrontations and threats of imminent discharge adversely affected the employee's health, and the top management had manifested insensitivity and a marked lack of response to the employee's grievances and requests for assistance.

(citing Taylor v. Hampton Recreation and Hampton Manpower Services, Case No. 82-CETA-198, Decision and Order, April 24, 1987).

   The facts in this case are similar to those that were found sufficient in Taylor to warrant a finding of constructive discharge. In particular, the evidence shows that Nochumson was subjected to a series of adverse actions, including threats to abolish his job, and that top management was largely unresponsive, if not hostile, toward his grievances. In addition, the record shows that the Laboratory's management attempted to remove Nochumson from his job by structuring a proposed reorganization so that Nochumson would no longer be able to work on the RAEM program. The adverse effects of these actions on Nochumson's ability to do his job is also demonstrated by Nochumson's testimony. For instance, Nochumson credibly testified that he had resigned from the job of RAEM manager because he was under so much stress that he "couldn't take it any more," an assertion that is corroborated by the statements Nochumson made to Stafford on July 11, 1991. Accordingly, I find that Nochumson was constructively discharged from his job as the RAEM manager and is therefore entitled to be reinstated in the RAEM manager's job, if he so elects. See NLRB v.Jackson Farmers, Inc., 457 F.2d 516, 518 (10th Cir. 1972).

   2. Damages

   It is well established that if a complainant has been injured as a result of a violation of the Clean Air Act's whistleblower provisions, the complainant is entitled to recover lost wages and benefits in addition to compensatory damages for any emotional distress and anxiety. DeFord v. Secretary of Labor, 700 F.2d 281, 286-87 (6th Cir. 1983); Blackburn v. Martin, 982 F.2d 125, 131-33 (4th Cir. 1992); Johnson v. Old Dominion Security, Case No. 86-CAA-3, Final Decision and Order, May 29, 1991. In this regard, a complainant has the burden of proving the magnitude of the injuries and must also show that the injuries were the "proximate result" of the employer's unlawful action. Pogue v. U.S. Department of the Navy, Case No. 87-ERA-21, Final Decision and Order on Remand, April 14, 1994. See also Morgan v. Secretary of Housing and Urban Development, 985 F.2d 1451, 1459 (10th Cir. 1993). However, uncertainties concerning the amounts that an employee would have earned but for the illegal conduct should be resolved against the discriminating party. Lederhaus v. Donald Paschen & Midwest Inspection Service, Ltd., Case No. 91-ERA-13, Decision and Order, Oct. 26, 1992. In addition, the Secretary may award pre-judgment interest on awards for back pay and benefits based on the interest rates set forth in 26 U.S.C. §6621. See Wells v. Kansas Gas & Electric Company, Case No. 83-ERA-13, Decision and Order, June 14, 1984, aff'd on other grounds sub nom. Kansas Gas & Electric v. Brock, 780 F.2d 1505 (10th Cir. 1985). The Secretary, however, has refused to award pre-judgment interest on compensatory damages. Blackburn v. Metric Constructors, Inc, Case No 86-ERA-4, Decision and Order on Damages, Oct. 30, 1991 (slip op. at n. 10), reversed on other grounds sub nom. Blackburn v. Martin, 982 F.2d 125 (4th Cir. 1992).

    The damages claimed by Nochumson fall into four basic categories. First, Nochumson seeks compensation for wage increases that he alleges he would have received had it not been for the unlawful adverse actions against him. Second, Nochumson seeks monetary compensation for the wages and benefits that he lost during part of the period he was off work in 1991 and 1992 due to a psychiatric disability. Third, he seeks $7500 for past and future medical expenses beyond those covered by insurance. Finally, Nochumson seeks an award of $250,000 for the emotional distress that resulted from the adverse actions.

   With regard to his first claim, Nochumson contended during his hearing testimony that he has lost "about $3,000" per year in salary increases since the beginning of Fiscal Year 1992. Tr. at 185. He determined this figure by comparing the salary increases he received in Fiscal Year 1992 and Fiscal Year 1993 with information in the Laboratory's library about the salary increases given to his "peers." Tr. at 182-85. In his post-hearing brief, however, Nochumson, without any explanation, changed his basis for calculating his lost wages and argued that he should instead be awarded the difference between his present salary and the salary of the current RAEM manager. It does appear from the overall record that since 1992 Nochumson's salary has increased less than it would have if he had not engaged in protected conduct. For example, Nochumson's whistleblower complaint prevented him from being given a performance evaluation for the time that he was the RAEM manager and this lack of a current evaluation apparently limited his wage increases in subsequent years. As well, it is clear that Nochumson's complaint generated management hostility that could well have

had an adverse effect on his wage increases. In fact, both of these possibilities seem particularly likely in view of Nochumson's testimony about the differences between his recent wage increases and those of his "peers."

   The Laboratory has failed to provide any evidence that contradicts Nochumson's claim for this type of damages. Likewise, the Laboratory has not disputed either of Nochumson's proposed methods for calculating such damages. Thus, an award of damages could be based on either method of calculation. However, of the two alternative methods, it seems that the first is preferable. While the second method has a superficial appeal, it appears from Nochumson's own testimony that the salary now being paid to the Laboratory's current RAEM manager would not necessarily be representative of the salary that Nochumson would be receiving if he had remained in that job. This is because, as Nochumson testified, salaries at the Laboratory are based on numerous factors including education, years of experience, and job performance. Tr. at 182-83. Since there is no evidence in the record to suggest that the current RAEM manager's education, experience, or performance is comparable to Nochumson's, it would therefore be inappropriate to use that person's current salary as a measure of damages. Accordingly, I conclude that Nochumson is entitled to back wages of $3,000 per year from the date that the Laboratory's Fiscal Year 1992 wage increases went into effect.

    Nochumson's second claim for damages (i.e., the request for reimbursement for some of the wages and benefits that he lost during the period he was off work due to a psychiatric disability) is premised on the contention that the stress associated with his work problems greatly extended the amount of time that he was psychiatrically disabled after his wife's death. In particular, Nochumson appears to contend that if it had not been for the stresses associated with the adverse actions against him, he would have been off work a total of only three months as a result of his wife's illness and death. See Tr. at 185. The amount claimed in this regard is composed of four subcomponents: (1) 576 hours of lost sick leave, which he values at $18,490; (2) 317 hours of vacation time, which he values at $10,176; (3) 408 days of creditable time for purposes of computing retirement benefits, which he values at $30,094; and (4) and $31,000 in income that was lost during a period when he received disability benefits that were 30 percent less than his regular salary. Tr. at 185-87, 918-20.

    To support his contention that there is a causal connection between the unlawful adverse actions and the alleged increase in the amount of time that he was off work in 1991 and 1992, Nochumson has offered his own testimony and that of the psychiatrist who treated him during this period. In particular, Nochumson testified that because of the adverse actions, his job, which had previously been something that he "drew strength from," became "a real horrible situation" that greatly aggravated the mental stresses associated with his wife's terminal illness and eventual death. Tr. at 181-82. As previously noted, this testimony was corroborated in part by Dr. Ross, who testified that Nochumson's concerns about the repercussions of his protected activities contributed to an "adjustment reaction" that eventually evolved into a "major depression" that was treated with an antidepressant. Tr. at 294-99. Dr. Ross also described Nochumson as at times being "really frightened and quite anxious" by these repercussions. Tr. at 299. The

Laboratory did not directly dispute this testimony, but did elicit Dr. Ross' admission that he could not separate the effects of the stress associated with Nochumson's work from the various other stresses in his life, such as the death of his wife, his marital difficulties, or his concerns about the welfare of his children. Tr. at 316-17.

No. 87-ERA-21, Final Decision and Order on Remand, April 14, 1994. See also Carey v. Piphus, 435 U.S. 247, 263-64 n. 20. Such proof can be accomplished by showing the nature and circumstances of the wrong and its effect on the plaintiff. Id. A complainant, however, need not prove actual financial losses in order to establish entitlement to damages for emotional distress. Blackburn v. Martin, 982 F.2d 125 (4th Cir. 1992). In determining how much to award in compensatory damages for emotional distress, the Secretary has attempted to ensure that comparable injuries result in comparable awards. See, e.g., McCuistion v. Tennessee Valley Authority, Case No. 89- ERA-6, Decision and Order, Nov. 13, 1991; Lederhaus v. Donald Paschen & Midwest Inspection Service, Ltd, Case No. 91-ERA-13, Decision and Order, Oct. 26, 1992.

   In this case, it is clear that Nochumson suffered emotional distress and anxiety as a result of the Laboratory's adverse actions against him. This emotional distress and anxiety is documented in the testimony of Dr. Ross and Dr. Dutcher as well as in Nochumson's own testimony. It is also illustrated by the fact that during the spring of 1991 Nochumson began to suspect that was being followed and that someone might be intercepting his mail and telephone calls. Likewise, the evidence is convincing that the period of time that he was off work after his wife's death was extended due to job-related anxieties. There is even some evidence that Nochumson's anxieties may have had some minor physical manifestations. Tr. at 295-96. Accordingly, I find that Nochumson is entitled to an award of compensatory damages for emotional distress and anxiety.

   As previously noted, in awarding damages for emotional distress the Secretary attempts to ensure that comparable amounts are awarded for comparable injuries. A review of the cases in which compensatory damages have been awarded for emotional distress indicates that in recent years many of the awards for such injuries have been at or below $10,000. See, e.g., Lederhaus v. Donald Paschen & Midwest Inspection Service, Ltd., Case No. 91-ERA-13, Decision and Order, Oct. 26, 1992 ($10,000); McCuistion v. Tennessee Valley Authority, Case No. 89-ERA-6, Decision and Order, Nov. 13, 1991 ($10,000); DeFord v. Tennessee Valley Authority, 81-ERA-1, Order on Remand, April 30, 1984 ($10,000); Johnson, et al. v. Old Dominion Security, Case No. 86-CAA-3, 4 & 5, Final Decision and Order, May 29, 1991 ($2,500 for each complainant); Blackburn v. Metric Constructors, Inc., Case No. 86-ERA-4, Final Order on Compensatory Damages, Aug. 16, 1993 ($5,000). There are apparently no reported Department of Labor decisions in which the amounts awarded for emotional distress have exceeded $10,000.

    The evidence in the three cases in which the Secretary awarded $10,000 for emotional distress is in many ways similar to the evidence in this case. For example, in the DeFord case the stress resulting from the complainant's transfer to a less desirable job caused the complainant to suffer anxiety and depression that was so prolonged that he was still being treated by a psychiatrist at the time of his hearing. As well, his stress resulted in complications of a pre-existing heart problem, difficulty in swallowing, nausea and indigestion. In Lederhaus the complainant was harassed by bill collectors, isolated from family members, and so depressed and angry that he contemplated suicide. Similarly, in

McCuistion the complainant suffered from exhaustion, depression, and anxiety, as well as from an exacerbation of a pre-existing heart condition.

   It can be argued, of course, that Nochumson's emotional distress was worse than that suffered by the complainants in the other cases and that therefore a $10,000 award would be inadequate. This argument, however, is not convincing. Although Nochumson was off work for an extended period, he received disability benefits during that period and therefore did not suffer the financial anxieties of the unemployed complainants in Lederhaus or McCuistion. Nor is there any convincing evidence that Nochumson suffered a loss of his personal reputation, as was shown in DeFord. Likewise, although Nochumson's emotional distress did have some minor physical manifestations, he did not suffer physical manifestations that were as serious as those described in the DeFord and McCuistion decisions. Moreover, it must also be recognized that much of Nochumson's emotional distress and associated psychiatric disability is attributable to his wife's death and would have therefore occurred even in the absence of any unlawful actions by the Laboratory. In short, the degree of job-related emotional distress in this case is less than rather greater than the emotional distress that existed in the other cases. Accordingly, it might appear that an award of $10,000 in this case would be excessive in comparison with the awards granted in the other cases. However, consideration must also be given to the fact that the $10,000 awarded to the complainants in the Deford, McCuistion and Lederhaus decisions would be worth substantially more today if adjusted for inflation. It must also be recognized that in 1989 the Tenth Circuit held that compensatory damages in a similar emotional distress case could be as much as $50,000 before becoming unlawfully disproportionate with awards in comparable cases. Wulf v. City of Wichita, 883 F.2d 842, 874-75 (10th Cir. 1989)(reversing an award of $250,000 and remanding with instructions to reduce the award to an amount no greater than $50,000). Given these various considerations, I conclude that the sum of $10,000 would be sufficient to adequately compensate Nochumson for his emotional distress.

   3. Other Forms of Proposed Relief

   As previously explained, Nochumson has also requested various other forms of relief, including an order requiring the Laboratory to provide him with a favorable performance rating and to expunge negative statements about him from its personnel files. These requests are justifiable and therefore will be granted. Nochumson's other proposed forms of relief, however, seem unnecessary. In particular, there has been no convincing reason given for requiring the Laboratory to publicly post a notice of the relief granted in this case or to notify witnesses that it is illegal to retaliate against them for testifying in this matter. Similarly, there is no plausible reason for ordering the Laboratory not to use its Employee Assistance Program as a tool for illegal retaliation against whistleblowers. Indeed, as previously noted, the Secretary has recently held that a mere referral of an employee to such a program is not in itself a type of adverse action.

   4. Costs and Attorney's Fees

   Under the provisions of the Clean Air Act a successful complainant is also entitled to recover reasonable costs and attorney's fees. However, under the provisions of 29 C.F.R. §24.6 (b)(3) such expenses are not recoverable unless and until a final order is issued in the complainant's favor. Accordingly, the resolution of any dispute over costs or attorney's fees will be deferred until after the Secretary issues a final order.

   Respondent Los Alamos National Laboratory is ordered to:

   1. Reinstate David Nochumson into his former position as manager of the Laboratory's RAEM program, if he elects such reinstatement.

   2. Pay David Nochumson back wages at the rate of $3,000 per year from the date that Fiscal Year 1992 wage increases went into effect and factor such increases into his wage base for all future wage increases.

   3. Pay David Nochumson $18,490 for lost sick leave, $10,176 for lost vacation time, and $31,000 for the difference between his disability benefits and his regular salary.

   4. Give David Nochumson retirement credit for all periods since October of 1991 which have not already been credited to him.

   5. Pay David Nochumson $7500 for past and future medical expenses.

   6. Pay David Nochumson compensatory damages in the amount of $10,000 as compensation for emotional distress.

   7. Pay pre-judgment interest on the amounts set forth in paragraphs 2, 3, and 5 in accordance with the rates adopted under 29 C.F.R. §20.58(a).

   8. Cease and desist from any further unlawful acts of discrimination against David Nochumson, provide him with a favorable performance evaluation for the period he worked as the RAEM manager, and expunge all negative statements about his performance during that period from the Laboratory's personnel records.

       Paul A. Mapes
       Administrative Law Judge

Date: September 22, 1994
San Francisco, California

NOTICE: This Recommended Decision and Order and the related administrative file is herewith being forwarded to the Office of Administrative Appeals, U.S. Department of Labor, Room S- 4309, Frances Perkins Building, 200 Constitution Avenue, N.W., Washington, D.C. 20210. The Office of Administrative Appeals has responsibility for advising and assisting the Secretary of Labor in the preparation and issuance of final decisions in employee protection cases adjudicated under the regulations at 29 C.F.R. Parts 24 and 1978. See 55 Fed. Reg. 13250 (1990).