U.S. Department of Labor
Office of Administrative Law Judges
525 Vine Street. Suite 900
Cincinnati. Ohio 45202
Date: October 16, 1990
CASE NO. 88-ERA-41
In the Matter of
WALTER H. WALLACE
Complainant
v.
TENNESSEE VALLEY AUTHORITY
Respondent
APPEARANCES:
W.P. Boone Dougherty, Esq.
For the Complainant
Thomas F. Fine, Esq.
For the Respondent
Before: ROBERT L. HILLYARD
Administrative Law Judge
SUPPLEMENTAL RECOMMENDED DECISION AND
ORDER
On May 14, 1990, the undersigned Administrative Law Judge
issued a Recommended Decision and Order which provided inter alia
as follows:
[Page 2]
VI. ATTORNEY'S FEES AND COSTS
In order to determine the amount of backpay,
attorney fees, and other costs, the Complainant,
through counsel, shall file, within 20 days of this
Recommended Decision and Order, the following
information with this Office with proof of service on the
Respondent: 1) A documented list of all claimed
backpay, damages and other costs which he is claiming
by virtue of his termination of employment from TVA
and, 2) A documented fee petition and bill of costs
and, 3) A list of any income which would constitute
offsets to the above.
Respondent will then have 20 days thereafter to
file any comments and/or objections with this office.
Thereafter, a supplemental Order for fees and costs
will issue.
VII. RECOMMENDED ORDER
Accordingly, it is hereby recommended that an
ORDER be issued by the Secretary of Labor providing
that the Tennessee Valley Authority is to:
1. Restore Complainant to his position as an
Electrical Task Engineer at the M-5 pay scale or to a
comparable position with all compensation, terms,
conditions and privileges of his employment;
2. Compensate Complainant for all salary lost due to
his discharge on September 30, 1988, through the date
of his reinstatement at the same grade and at the same
rate of pay which he would have received if he had
continued to be employed and pay interest on the amount
of backpay as provided in 29 U.S.C. 1961. Backpay
awarded under this decision is to be offset by any post
termination wages.
3. Cease all discrimination against Complainant in any
manner with respect to his compensation, terms,
conditions and privileges of employment because of any
action protected by the Energy Reorganization Act and
purge Complainant's personnel file of all references
relative to this discharge on September 30, 1988;
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4. Respondent shall pay to Complainant all costs and
expenses, including attorney's fee, reasonably incurred
in connection with the bringing of this complaint upon
which this recommended order is issued, such as may be
approved by the Secretary upon issuance of the
Supplemental Recommended Decision and Order.
In response to the above Order, the Complainant filed on
June 22, 1990, a Claim for Backpay, Benefits, Costs and Expenses,
and Compensatory Damages and a Petition for Attorney's Fees which
are attached hereto and marked as Exhibits 1 and 2. The Respondent
on July 13, 1990, filed Comments and Objections to Complainant's
Claims for Backpay, Damages, Attorney Fees which is attached
hereto and marked as Exhibit 3.
A telephone conference was held on September 12, 1990, to
discuss the Complainant's claims for damages, his petition for
attorney's fees and the objections thereto filed by the
Respondent. Participating in the conference were W.P. Boone
Dougherty, attorney for Complainant, and Thomas F. Fine, attorney
for Respondent, and the undersigned Administrative Law Judge. At
that time, Complainant's attorney stated that there were no
offsets to income because Mr. Wallace was still unemployed and
while he had purchased a small grocery store, it was not yet
income producing. The parties agreed that the TVA figures were
a "little more accurate" as far as determining the pay schedule
and dates concerning impact pay. There was some discussion as to
compensation for annual leave, medical insurance, compensatory
damages and attorney fees. These are also discussed in the
petition and response thereto filed by the parties which are
attached hereto and marked as Exhibits 1, 2 and 3.
DISCUSSION
Backpay
Complainant claims backpay from September 30, 1988, through
June 30, 1990 (the end of the most recent pay period) amounting
to $95,630.50 plus merit pay of 5% amounting to $4,781.53 for a
total back pay award of $100,412.03. In addition, he claims
compensation for annual leave, retirement and medical insurance
which he alleges amounted to $23,907.63, 25% of gross salary.
Therefore, the total claimed for backpay, merit pay and benefits.
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is $128,317.45. Complainant also claims entitlement to pay
raises equivalent to those received by Mr. Hermati-Arass from
September 30, 1988.
Respondent states that had Complainant remained employed by
TVA, his gross backpay for 1988, 1989 and through June 30, 1990,
including impact pay of $3,012.00 (subject to mandatory
deductions for Federal income tax and FICA) would total $93,613.00.
Impact pay was terminated on September 30, 1988.
In the telephone conference held on September 12, 1990,
Complainant's attorney did not contest the Respondent's figures
concerning backpay and impact pay but stated that Respondent's
figures were a little more accurate as he had access to the exact
salaries and to the dates that they were paid.
I find that the amount of backpay, including impact pay,
that Mr. Wallace would have received for the period from September
30, 1988 through June 30, 1990 had he remained employed by TVA
would total $93,613.00 plus interest. Stone v. Nu-Car Carriers,
Inc., 86 STA 16 (7-29-87) Vol. 1, No. 4 DOLD 312; Wells v.
Kansas Gas and Electric Co., 83-ERA-12, Slip Op. of SOL at p.
11-12 (1984). This total is subject to deductions for Federal
income tax and FICA. There is no information concerning raises
received by Mr. Hermati-Amass and there is no evidence to support
Complainant's argument that he would be entitled to such raises.
Benefits
Complainant claims compensation for annual leave, retirement
and medical insurance amounting to 25% of gross salary totaling
$23,907.63. Respondent argues that Mr. Wallace would not have
received a cash amount for these benefits if he had remained
working and that if and when Mr. Wallace ultimately reinstated,
he will be credited with the amount of annual leave and sick
leave which he would have earned during that period. In regard
to retirement contributions, Mr. Wallace will have the option of
making the required employee contributions to the TVA Retirement
System for the period of time that he was actually not employed
by TVA. I find the Respondent's arguments to be persuasive and
will not recommend that Mr. Wallace be reimbursed in cash for
these benefits.
Regarding medical insurance coverage, the Complainant would
be entitled to the difference, between the premiums he has paid
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as a member of the group medical insurance as a retirement benefit
and the amount of premiums that he would have paid had he
remained employed by TVA.
Offsets
The amount received by the Complainant is subject to offsets
for any amounts that Mr. Wallace may have received as retirement
benefits, other earned income, unemployment benefits, etc. At
the telephone conference, Complainant advised that he had no
offsets to report.
Compensatory Damages
Complainant claims compensatory damages of $225,000.00 for
emotional distress, stress, elevated hypertension and other
related physical and emotional problems. The Respondent argues
that the Complainant has not laid an adequate evidentiary basis
for any amount of compensatory damages.
Mr. Wallace did testify at the hearing regarding the stress
and related hypertension which the termination of his employment
termination has caused him. Compensatory damages are awardable
under employee protection statutes. Deford v. Secretary of
Labor, 700 F.2d 281 (6th Cir. 1983).
Based upon the Complainant's testimony and the facts of this
case, I will recommend an award of compensatory damages in the
amount of $25,000.00.
Attorney's Fees and Costs
W.P. Boone Dougherty, attorney for the Complainant, requests
attorney's fees in the amount of $l3,812.50 based upon the hours
and time spent as listed in his fee petition (Exhibit 2). He
requests that this amount be doubled because the Agency's actions
were willful. Respondent's counsel stated in the telephone
conference that he does not contest the amount of attorney's fees
of $13,812.50 but does contest doubling this amount. I know of
no authority for doubling the amount of attorney's fees and
Complainant's counsel stated in the telephone conference that he
could not cite any such authority. Therefore, I will recommend
approval of attorney's fees of $13,812.50.
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The Complainant claims costs for depositions, hearing
transcript, and Federal Express in the amount of ,892.03. This is
not contested and is a reimbursable expense.
SUPPLEMENTAL RECOMMENDED ORDER
It is hereby recommended that an Order be issued by the
Secretary of Labor directing the Tennessee Valley Authority to:
1. Pay to the Complainant, Walter H. Wallace, the total amount
of $120,505.03 (plus interest for backpay), which represents
backpay of $93,613,00, compensatory damages of $25,000.00, and
costs and expenses of ,892.03, and
2. Pay to W.P. Boone Dougherty, Esquire, attorney fees in the
amount of $13,812.50.
