DATE: November 7, 1995
CASE NO.: 89-ERA-22
In the Matter of:
SHANNON T. DOYLE,
Complainant
v.
HYDRO NUCLEAR SERVICES,
Respondent.
Appearances:
STEPHEN M. KOHN, ESQ.
KOHN, KOHN, & COLAPINTO, P.C.
517 Florida Avenue, N.W.
Washington D.C.
On Behalf of the Complainant
HOPE A. COMISKY,
Attorney at Law
Fourteenth Floor
1600 Market Street
Philadelphia, PA 19103
On Behalf of the Respondent
Before: Hon. Richard D. Mills
Administrative Law Judge
RECOMMENDED DECISION AND ORDER ON DAMAGES
The case before me on remand from the Secretary of Labor
arises under the employee protection provision of the Energy
Reorganization Act of 1974, as amended (hereinafter ERA or the
[PAGE 2]
"Act"), 42 U.S.C. 5851 (1988). In his Decision and Order of
Remand, the Secretary directed a hearing on the issue of damages,
which in this case encompasses back pay, front pay, compensatory
damages, costs, and attorney fees. The hearing took place on
December 14, 1994, in Dothan, Alabama.
PROCEDURAL HISTORY
On January 13, 1989, Shannon Doyle (hereinafter
"Complainant") filed a complaint with the U.S. Department of
Labor asserting that Hydro Nuclear Services (a subsidiary of
Westinghouse) (both will hereinafter be referred to as
"Respondent") had violated ERA when it failed to hire him as a
casual employee to work at the D.C. Cook nuclear power plant
during an outage in the fall of 1988 because Complainant refused
to sign a release permitting Respondent to perform a background
check. In a Recommended Decision and Order, the Administrative
Law Judge held that Respondent refused to hire Complainant for a
legitimate reason and not for protected activity under the ERA.
On March 30, 1994, the Secretary of Labor issued a Final Decision
and Order finding that Respondent discriminated against
Complainant and violated the ERA when it refused to hire
Complainant.
On May 26, 1994, Respondent petitioned the Third Circuit for
review of the Secretary of Labor's March 30, 1994 Order. On July
27, 1994, Respondent and the Secretary of Labor moved jointly to
remand the case to the Department of Labor for consideration of
evidence related to damages. The Third Circuit granted this
motion on August 24, 1994. In accordance with the ruling of the
Third Circuit, on September 7, 1994, the Secretary of Labor
issued an order remanding the case here for further proceedings.
On December 14, 1994, this Court held a one day hearing limited
to the issue of appropriate remedy and relief which should be
awarded to Complainant.
ISSUES
1. A determination as to the period of time for which back
pay award should be calculated;
2. Whether Complainant is entitled to compensatory damages,
and if so, the amount of those damages;
3. Whether Complainant is entitled to post-judgement
interest;
4. Whether Complainant is entitled to reinstatement or, in
[PAGE 3]
the alternative, front pay.
5. Whether Complainant is entitled to recover out-of-pocket
expenses, and if so, the amount of those expenses;
6. Whether Complainant is entitled to injunctive relief.
FINDINGS OF FACT
1. Complainant is a 40-year-old former senior
decontamination technician living in Dothan, Alabama. (Tr.
106-107). He is married and has four children ages 17, 15, 14,
and 12. (Tr. 106-107). Complainant has a high school equivalency
degree and has completed about two years of college. (TR. 106).
From March 1971 through March 1974 he served in the U.S. Army.
(TR. 106).
2. From July 1980 to March 1983, Complainant was employed
at the J.M. Farley Nuclear Plant operated by Alabama Power
Company. (CX-1). During that period he acquired approximately
6000 hours of experience as a Nuclear Operator/Decontamination
Technician. (TR. 108). Complainant lived in Farley and commuted
to work from his home (TR. 140-142).
3. Complainant testified that he resigned from his job
after reporting Alabama Power to the Nuclear Regulatory
Commission for safety problems at Farley. (TR. 140-142).
Specifically, he believed a design flaw in some Westinghouse
equipment had caused a fuel failure and resulted in worker
exposure to transuranic materials. (TR. 108-109).
4. Complainant hoped that he would eventually be promoted
from a decontamination technician to a health physics technician.
(TR. 147).
5. At no time during the job with Alabama Power did
Complainant take or pass the national qualifying test needed for
promotion to a board-certified health physics technician. (TR.
141).
6. After leaving Farley, Complainant submitted resumes to a
number of companies supplying support personnel to the nuclear
industry. These companies included Rad Services, NSS, Applied
Radiological Control, and NUMANCO. (TR. 109 and 101).
7. After his whistleblowing activity at Farley, Complainant
had trouble getting a job reference from Alabama Power. (TR.
142).
[PAGE 4]
8. In 1987 Complainant was briefly employed as a senior
decontamination technician at the Wolf Creek Generating Facility
operated by Kansas Gas and Electric. (CX-1), (TR. 113). He left
that position after being harassed by co-workers for the previous
whistleblowing activity. (TR. 145).
9. In late October, 1988, Complainant was contacted by
NUMANCO, a division of Westinghouse Electric Corporation, about a
senior decontamination technician job at the D.C. Cook Nuclear
Power Plant. (TR. 110).
10. Complainant was considered for employment at D.C. Cook
as a non-local, casual decontamination technician for the period
of the outage. (Tr. 110-111, 146).
11. A casual employee is one employed for a short time and
a limited and temporary purpose.
12. D.C. Cook is a nuclear power plant in Bridgeman,
Michigan, owned by I&M Power. (CX-4) For approximately 10
years, Hydro held a contract with D.C. Cook to provide year-round
and casual decontamination technicians. (CX-5, pg. 14).
13. Utility companies have planned "outages," which are
shutdowns of operations to perform maintenance procedures. Non-
local decontamination technicians are hired as casual or
temporary employees to work full-time during a particular outage
and then are usually laid off at the end of that outage. (Tr.
93-97, 180-182).
14. On October 30, 1988, Complainant received a telephone
call from Westinghouse/NUMANCO's personnel office in which he was
told that the company had a copy of his resume and asked if he
wanted to work for Hydro Nuclear Services, a division of
Westinghouse. (Tr. 110).
15. In late October 1988, Mr. Richard McCormick, a
recruiter for Hydro and the site coordinator at D.C. Cook Nuclear
Power Plant, called Complainant to discuss a senior
decontamination technician job at the plant. (TR. 111). Hydro
offered Complainant the position at a pay rate of $6.50 per hour
for regular time and $9.25 per hour for overtime with a per diem
of $48.00 a day without any health benefits included in the
offer. (TR. 167), (CX-4, p.6), (CX-3, p. 60).
16. These employment terms were stipulated to by the
parties. No time limitation was expressly placed on the duration
of the job. (CX-4), (TR. 112).
[PAGE 5]
17. On November 7, 1988, Complainant arrived at D.C. Cook
where he was paid $182.60 for his travel to Michigan and $384 in
per diems for November 6 through 13. At Mr. Dan Haynes'
instruction, Complainant attended training sessions at D.C. Cook
on November 8th. (CX-4, p.6)
18. On November 18, 1988, after Complainant had undergone
various employment screening procedures, Mr. Haynes asked him to
complete an employment application. Included in the application
was an "Authorization for Release of Information and Records"
authorizing Complainant's previous employers to release his
employment records to Hydro. Doyle v. Hydro Nuclear
Services, No. 89-ERA-22, Sec. Decision at 1, March 30, 1994.
The form included the following paragraph:
Further, I hereby release and discharge Hydro Nuclear
Services, their representatives, and their clients for whom
the investigation is being performed and any organization
listed above furnishing or receiving any information
pertaining to me from any and all liability or claim as
results of furnishing or receiving such information pursuant
to this authorization. Id. at 2.
19. Without the above authorization signed, Hydro would not
hire the Complainant. Id.
20. Complainant returned the application with the
authorization paragraph crossed out. Believing that the
paragraph constituted a waiver of his rights under Section 210 of
the ERA, Complainant refused to sign another copy of the
authorization form unless it was deleted. Id.
21. In 1989, Hydro, NUMANCO and Hittman, all subsidiaries
of Westinghouse, became "Westinghouse Radiological Services."
(CX-5, p.61), (TR. 167).
22. When Westinghouse Staffing Services ("WSS") was formed,
Hydro's management team was transferred to WSS and the Nuclear
Services Division. (CX-5, pp.66-67). The D.C. Cook contract had
previously been assigned to NUMANCO, which had also assumed
commercial and operational responsibility for the contracts at
Comanche Peak, Indian Point, Farley, Surrey 1 and 2, and North
End 1 and 2. (TR. 169-170), (CX-5, pp 68-69).
23. Effective January 7, 1991, Westinghouse entered into a
complex sales agreement with Nuclear Support Services, Inc.
[PAGE 6]
("NSSI") (CX-3(c)). As part of the agreement, NSSI took over
most of Westinghouse's decontamination operation. (CX-3, p. 25).
24. At the time of the sale, the decontamination work
formerly performed by Hydro had been incorporated into NUMANCO.
(TR. 169, 188-189). As a consequence of the agreement, the
decontamination and health physics technicians working with
Westinghouse and Hydro either went to NSSI or became Westinghouse
employees. (CX-3, pp. 25-26, 41 and 105).
25. The agreement transferred certain properties and assets
of NUMANCO and WISCO (a business unit of NSD) to NSSI.
(CX-3(c)). In addition, NSSI was guaranteed to work as a
subcontractor for Westinghouse at the nuclear plants for which
Hydro/NUMANCO had previously provided services. (CX-3(c)).
Consequently, NSSI would be the preferential provider of
decontamination technicians at all Westinghouse operations and
nuclear facilities at which Westinghouse had the contract to
provide decontamination work. (CX 3(c)), (TR. 188-189).
Thereafter, if Westinghouse needed decontamination technicians,
it would have to obtain them through NSSI. (CX-3, p. 25, 76,
110).
26. In paragraph 7.9.2 of the January 7, 1991 contract,
NSSI agreed to the following:
As of the closing date, NSSI, or its designated subsidiary,
shall offer continued employment to those regular and casual
employees of NUMANCO and WISCO listed on Schedule 7.9.2.
Such offer shall be at substantially comparable wages and
benefits in the aggregate, to those provided by Westinghouse
as of December 15, 1990.
(CX-3(c), p. 56).
27. Pursuant to this agreement, some decontamination
technicians and health physics technicians formerly employed by
Westinghouse/Hydro/NUMANCO either obtained employment with NSSI
or became permanent employees of Westinghouse.
28. Michael Dansard, one of ten decontamination
technicians, hired by Hydro at D.C. Cook at the same time
Complainant was hired, was listed on Schedule 7.9.2 among the
Westinghouse/NUMANCO employees to be hired by NSSI. The other
ten employees were not on the list. (CX-3(c), Schedule 7.9.2),
(RX-5), (TR. 234).
29. The ten non-local, casual decontamination technicians
hired along with Complainant were scheduled to work for an outage
in the fall of 1988 at the D.C. Cook plant.
[PAGE 7]
30. An "outage" occurs any time that a nuclear plant is out
of service. In "planned outages," a plant is brought down for
routine maintenance and refueling. Planned outages are regularly
scheduled twice a year during the spring and fall when demand for
power is low. (CX-3, p. 103). Although planned outages usually
last two to three months, sometimes they last for over a year.
(TR. 247), (TR. 102).
31. Decontamination technicians are needed during both
planned and unplanned outages. (TR. 102-103). Additionally,
decontamination technicians are often employed in non-outage
situation while a plant is still operating. (TR. 103).
Non-outage situations where decontamination technicians are
needed can last from a week to four months or longer. (TR. 176).
32. The ten individuals hired along with Complainant worked
from November 21, 1988 until the end of that outage on December
31, 1988, with the exception of the weeks ending November 25,
1988 and December 2, 1988. (RX-2-5).
33. These ten individuals were laid off on December 31,
1988. (RX-2-5).
34. The average number of hours worked by these individuals
at D.C. Cook from November 25, 1988 through December 31, 1988 was
149.20 hours of regular time and 93.70 hours of overtime.
(RX-5).
35. Only three of these ten non-local, casual
decontamination technicians returned to work for Hydro at D.C.
Cook in 1989. (RX-5).
36. Their subsequent work history at D.C. Cook is as
follows: Arbuckle worked for four (4) weeks that year; Nuzum
worked for less than three (3) weeks; and Dansard worked for
approximately ten (10) weeks. (RX-5).
37. The average number of hours worked by these individuals
at D.C. Cook in 1989 was 154.67 regular hours and 61 overtime
hours. (RX-5).
38. According to Hydro's wage and tax register, all 10
employees hired with Complainant were on the payroll as of June
30, 1989 and only one of the employees had no income from Hydro
during that quarter. (CX-14).
39. Mr. Daniel Haynes explained that these employees did
not
[PAGE 8]
work for Hydro at D.C. Cook, but were instead sent by Hydro to
work at other sites. (TR. 238).
40. Hydro managers preferred to hire "returnees" at D.C.
Cook because it was easier and more cost effective than bringing
in and training new people. (TR. 187-188) Returnees who did
good work therefore moved to the top of the hiring list for
future outages. (TR. 90, 243). Both the utility and Hydro found
it cheaper and more efficient to rehire road technicians
previously approved at the site. (CX-5, pp. 20-21).
41. Even if a vendor lost its contract with a nuclear
plant, returnees can often keep working at the plant under the
new contractor. (TR. 85).
42. It is possible, if a spot became available, that a non-
local casual decontamination technician could be hired as a local
technician and work full time, although this might mean less
income to an employee who receives a substantial amount of per
diem as a non-local employee. (CX-5, p. 83).
43. It is possible for a senior decontamination technician
to be promoted to a health physics or radiation protection
position. (TR. 80, 193). However, a required number of hours as
a decontamination technician is required along with a passing
mark on a national qualifying health physics test. (TR. 193).
44. Complainant, while working as a decontamination
technician, did not take or pass the national qualifying test
needed for promotion to a board-certified health physics
technician. (TR. 141).
45. After being fired by Hydro, Complainant tried to find
employment in the Chicago area by calling a friend whose brother
owned a residential construction company in the Chicago suburbs.
After meeting his friend's brother and filing an application,
Complainant went back to Alabama. Despite several follow-up
calls, Complainant was not offered employment. (TR. 117).
46. After filing a complaint with the DOL Wage and Hour
Division on December 9, 1988, Mr. Doyle received a two-page
document entitled "Unescorted Access Authorization Log Sheet."
(CX-8). Complainant obtained the document through a discovery
request about six weeks after his discharge from Hydro. (TR.
119). The document showed that Complainant was disqualified for
unescorted access at D.C. Cook and that "Chris from Equifax" had
been notified on November 22, 1988. (CX-8).
[PAGE 9]
47. Denial of unescorted access at a nuclear facility
essentially denies employment at nuclear facility. (TR. 92, 120-
121).
48. The document denying Complainant unescorted access was
a Hydro/Westinghouse document. (TR. 118).
49. During January, 1989, Complainant filled out two job
applications regarding employment in the atomic energy field.
Both applications included the question "have you ever been
denied unescorted access at a nuclear facility?" (TR. 121-122).
50. Complainant sent in one application and did not hear
back from the company. Complainant did not send the second
application because he believed it would have the effect of
spreading the adverse fact that he had been denied unescorted
access and would ruin his professional reputation. (TR.
121-122).
51. Complainant focused his job search efforts outside the
nuclear field after being denied unescorted access by Hydro.
(TR. 122).
52. Complainant registered with the Alabama State
Employment Agency and with several temporary employment agencies.
(TR 126.) Complainant checked help wanted ads in two local
newspapers and also in two out-of-town publications. (TR. 126).
At different times, Complainant would visit different job sites
seeking employment and would even follow construction company
trucks to locate potential employers. (TR. 127-128).
53. Complainant also inquired about rejoining the armed
forces, registered with local carpentry unions in Birmingham and
Pensacola, and used personal contacts to look for employment.
(TR. 125, 129).
54. Through a friend who worked for Applied Radiological
Control, Complainant again tried to get work in the nuclear
industry. When Complainant called his friend to let him know he
was looking for a job, the friend suggested that Complainant
could work directly for him. He submitted Complainant's resume
and recommended him for the position. Complainant never heard
back from him, and it was not until later that Complainant
learned that he had been turned down. (TR. 125-126).
55. At the time of the hearing, Complainant had a temporary
job with Acousti Engineering of Alabama. (TR. 130).
[PAGE 10]
56. Complainant claims that as a result of feeling stress
and pain form his prior whistleblowing activities in 1986 and
1987, and his discharge from Hydro, he experienced symptoms of
psychological stress beginning in the spring of 1988. (TR.
46-48, 50, 62-64).
57. After losing his position at Hydro, Complainant
consulted a physician for depression and anxiety. He was placed
on Xanax, an anti-anxiety, anti-panic medication and, more
recently, the antidepressant Zoloft. (TR. 123-124).
58. Complainant also conducted a doctor after experiencing
chest pains and was placed first on Ambian, then on Tranzene.
(TR. 123-124). Complainant is currently taking Tranzene
59. Altogether, Complainant was seen by three doctors: Dr.
Chastain, Dr. Cook, and Dr. Loganthaul, a psychologist. (TR.
123, 154).
60. From November, 1988 until September, 1994, Complainant
only saw a psychologist once. At that time, the psychologist,
Dr. Loganthaul, prescribed him medications. (Tr. 154).
61. In September, 1994, Complainant first visited Dr.
Carter, who diagnosed Complainant as suffering from post
traumatic stress disorder ("PTSD") which he believes began in the
Spring of 1988. (TR. 65-66, 153-154).
62. Dr. Carter is of the opinion that the Complainant not
resume work in the nuclear industry because the Complainant feels
that he has been "blackballed" within the industry.
DISCUSSION
Under the Energy Reorganization Act, whistleblowers are
entitled to various damages. Under Sec. 210 (b) (2) (B):
If, in response to a complaint filed under paragraph (1),
the Secretary determines that a violation of subsection (a)
of this section has occurred, the secretary shall order the
person who committed such violation to (i) take affirmative
action to abate the violation, and (ii) reinstate the
complainant to his former position together with the
compensation (including back pay), terms, conditions, and
privileges of his employment, and the Secretary may order
such person to provide compensatory damages to the
complainant. If an order is issued under this paragraph,
[PAGE 11]
the Secretary, at the request of the complainant shall
assess against the person against whom the order is issued
a sum equal to the aggregate amount of all costs and
expenses (including attorneys' and expert witness fees)
reasonably incurred, as determined by the Secretary by the
complainant for, or in connection with, the bringing of the
complaint upon which the order was issued.
42 U.S.C. Section 5851 (b) (2) (B).
Once an employee establishes a violation of the Act, there
is a "presumption" that the employee is entitled to
reinstatement, back pay and the other remedies available under
the law. Artrip v. Ebasco Services, Inc., 89-ERA-23, Sec.
Dec., March 21, 1995, slip op. at 15.
I. Back Pay
The Complainant here is entitled to back pay. The goal of
back pay is to make the victim of discrimination whole and
restore him to the position that he would have occupied in the
absence of the unlawful discrimination. Albemarle Paper Co.
v. Moody, 422 U.S. 405. Therefore, the person discriminated
against should only recover damages for the period of time he
would have worked but for the wrongful termination; he should not
recover damages for the time after which his employment would
have ended for a nondiscriminatory reason. Martinez v. El
Paso County, 710 F.2d 1102, 1106 (5th Cir. 1983). For
example, back pay liability ends when the contract under which
the employee worked is terminated. Holley v. Northrop
Worldwide Aircraft Servs., Inc., 835 F.2d 1375, 1377 (11th
Cir. 1988).
Complainant contends that he is entitled to back pay from
the time he was fired until the date of judgement. Complainant
asserts that his back pay should not expire on January 1, 1989,
when the particular outage he was hired for ended, because he
would have continued his employment with Respondent. The issue
to be decided here is whether Complainant would have continued to
work for Respondent past the date of his term of employment.
First to be analyzed is the Complainant's term of
employment, if any. Road decontamination technicians are
technicians who are always working in an outage situation.
(TR.80). Road decontamination technicians are also known as
contract technicians. (Tr. 80). Provided that there is work
available, utilities will keep contract technicians working.
(TR. 82). If there is no work available, contract technicians
will be laid off but will be
[PAGE 12]
eligible to be recalled should another outage situation reoccur.
(TR. 82-83, 94).
From the testimony of Mrs. Yvonne Henderson, it is clear
that road/contract decontamination technicians such as the
complainant, are hired to work for an outage situation, then they
are laid off until another outage situation arises. (TR. 82-83,
94). When the next outage situation occurs, those employees that
were laid off are not automatically rehired. (TR. 94). Instead,
they go through a screening process where their resumes are once
again examined and past employment performance is evaluated.
(TR. 89, 94). If an employee has performed well in past outages
and he/she meets all the qualifications of the utility, he/she
may be preferred over employees who have not worked for that
particular utility. (TR. 89). However, there is no guarantee
that an employee will be rehired.
It is evident that road/contract decontamination technicians
work for a period of time depending on the length of the outage.
There is no "fixed term" contract of employment, but this may be
true only because there is no fixed term outage. Road/contract
decontamination technicians are hired with the knowledge that
their period of employment is the same as the period of the
outage. Complainant is no different in this regard. In sum, the
term of employment offered to Complainant resembles a fixed term
contract and shall be treated as such.
Complainant's term of employment was from November 21, 1988,
the start of the outage, until December 31, 1988, the end of the
outage.
Absent evidence that Complainants employment would have
continued past the end of the outage (January 1, 1989),
Respondents back pay liability should end on that day.
Blackburn v. Martin, 982 F.2d 125, 129 (4th Cir. 1992).
In cases of fixed term contracts, a complainant must initially
introduce some evidence showing that the economic injury
resulting from the discharge extended beyond the employment term.
Walker v. Ford Motor Co., 684 F.2d 1355, 1362 (11th Cir.
1982). This proof may consist of no more than a showing that the
particular complainant's contract had been renewed in the past,
that contracts of similarly situated employees had been renewed,
or that the employer had made a promise of continued employment.
Id.
Complainants also have the initial burden of establishing
the economic injury resulting from the adverse employment action.
Marks v. Prattco, 633 F.2d 1122, 1125 (5th Cir. 1981).
Not until
[PAGE 13]
a complainant establishes what he contends are his damages, will
the burden of going forward to rebut the damage claim fall on a
respondent. Accord Taylor v. Phillips Industries, Inc.,
593 F.2d 783, 787 (7th Cir. 1979). Once a complainant carries
his burdens, then the burden of proof shifts to the Respondent to
show by a preponderance of the evidence that the complainant
would not have remained in employment beyond the contract term.
Walker, 684 F.2d at 1361.
Complainant, in order to be recover damages past January 1,
1989, must show that his contract would have been renewed or that
similarly situated employees contracts have been renewed. In
addition, Complainant must show the amount of damages he is
entitled to.
Complainant testified that he had hoped to remain employed
at D.C. Cook as a permanent employee. (TR. 115). Complainant
also hoped that he would be promoted, at a minimum, to a senior
health physics technician. (TR. 115). Complainant attempts to
substantiate his claim that he would have remained in the employ
of Respondent by offering the payroll records of Westinghouse
which show the ten employees hired with the Complainant as being
on the Respondent's payroll as of June 30, 1990. (CX-14).
Respondent has countered by offering time sheets showing that
only three out of the ten employees hired with Complainant worked
for Hydro at D.C. Cook in 1989. (RX-5). And only one of the
three worked substantial hours. (RX-5). Construing the evidence
above as being accurate leads to the conclusion that the
employees hired at the same time as the Complainant did indeed
continue some kind of employment with the Respondent well into
1989. However, comparing the evidence makes it clear that the
majority of time spent working for the Respondent was done at
nuclear plants other than D.C. Cook.
In Blackburn, an electrician employed by Metric was
fired after refusing to work without protection in a nuclear
containment area. All 45 electricians hired for the project were
laid off and only two of the 45 ever returned to work with
Metric. Blackburn, 982 F.2d at 129. The court found that
the plaintiff failed to present evidence that his employment
would have continued absent the discrimination. Id. In
Welch v. University of Texas, 659 F.2d 531, 535 (5th Cir.
Unit A 1981), it was pure speculation whether or not an employee
would have been shifted to another grant job after the grant
which was providing the funds for her salary had expired. The
court found that mere speculation was not enough and that the
award for damages was limited to the date that the grant under
which she was working expired. Id.
[PAGE 14]
This brings us back to Walker which notes a critical
factual difference between Welch and other employee
discharge cases involving fixed term employment:
[The] teacher cases invariably included evidence that either
the particular teacher's limited-term contract had been
renewed in prior years or else that the school system
involved typically had renewed teacher contracts.
684 at 1362.
Again, in Walker, a plaintiff must introduce some
evidence showing that the economic injury resulting from the
discharge extended beyond the employment term and this proof may
consist of no more than a showing that the plaintiff's contract
had been renewed in the past or that contracts of similarly
situated employees had been renewed, or that the employer had
made a promise of continued employment. Id.
Complainant asserts that his goal in working for Respondent
was to become a full-time, permanent senior health physics
technician. (TR. 115). Complainant's post hearing brief asserted
that Complainant expected that he could be "rolled over" into a
permanent job with D.C. Cook. (See Complainant's post hearing
brief, pages 14-15). In examining the evidence, if the scope of
evidence considered is limited to only D.C. Cook, then
Complainant cannot recover damages for back pay past the date of
the end of the outage for which he was hired. This is because
the evidence concerning the D.C. Cook facility is far too
speculative. However, if job sites other than D.C. Cook are
considered in determining Complainant's prospects of being
rehired, than the evidence is ample enough to infer that
Complainant would have been at least re-hired at a different
plant.
It is beyond a doubt, that as a road technician, Complainant
would go where he could find work. Had there been no prospects
for future employment at the D.C. Cook plant, Complainant
undeniably would have sought employment at another plant under
contract with Hydro/Westinghouse. Complainant has demonstrated
that similarly situated employees were regularly retained and
rehired by Respondent. Therefore, Respondent is liable for back
pay beyond the original term of employment.
Further, Respondent is liable for back pay beyond the
initial outage date because Respondent was directly responsible
for the denial of Complainant's security clearance. The document
denying Complainant clearance was a Hydro/Westinghouse document.
(TR. 119). Once a workers clearance is denied, it is unlikely
that the
[PAGE 15]
worker will ever find employment in the nuclear industry again.
(TR. 92, 120-121). In effect, this denial "blackballed"
Complainant from the nuclear field and had the result of
continuing Complainant's economic injury far beyond the initial
period of employment.
Complainant has therefore shown that his economic injury
resulting from the Respondent's discriminatory act extended
beyond his employment period. Under Walker, Respondent
now bears the burden of showing that the Complainant would not
have been employed past the initial D.C. Cook outage.
Walker, 684 F.2d at 1362. This, Respondent has not done.
In sum, Complainant has not presented sufficient evidence
that would support his contention that he would have been rehired
by Hydro at D.C. Cook. However, the evidence is clear that
similarly situated employees found work at other nuclear
facilities under Hydro/Westinghouse contracts. As a road
technician, Complainant would have also found employment at other
nuclear facilities under Hydro/Westinghouse contracts. Further,
Complainant would have been likely to find employment at nuclear
facilities not under Hydro/Westinghouse contracts but for the
denial of unescorted access given to Complainant. Therefore I
find that Complainant is entitled to back pay dating from his
discharge to the present.
Complainant would have received $6.50 per hour of regular
pay and $9.25 per hour of overtime pay at 72 hours per week.
(CX-4, p.6). Complainant in this case has asked for six months
of back pay per year. Complainant would have earned $260.00 per
week of regular pay (40 hrs x $6.50), and $296.00 per week of
overtime pay (32 hrs x $9.25) for a total of $556.00 per week.
At 26 weeks of work per year, Complainant would have earned a
total of $14,456.00 of pay each year. The award of back pay will
continue up until the date of this decision.
Also considered in the back pay calculation is the amount of
interim earnings made by the Complainant during the back pay
period. Interim earnings in replacement employment should be
deducted from a back pay award. Blackburn v. Metric
Constructors, Inc., 86-ERA-4, Sec. Dec. and Order, Oct. 30,
1991. The employer, and not the complainant, bears the burden of
proving a deduction from back pay on account of interim earnings.
Hadley v. Southeast Coop. Serv. Co., 86-STA-24, Sec. Dec.
and Order, June 28, 1991. Here, the only evidence of any interim
earnings has been presented by the Complainant. Since Respondent
has offered no evidence of interim earnings, only the interim
earnings presented by the Complainant will be used in deducting
from Complainant's back pay
[PAGE 16]
award. These interim earnings are as follows:
1) $2443.78 from Acousti Engineering of Alabama, Inc.;
2) $258.00 from Space Science Services, Inc.;
3) $389.55 from Doyle Construction;
Total= $3091.33
Complainant is also entitled to all appropriate prejudgment
interest on the award of back pay. Such interest will be
calculated in accordance with 29 CFR 20.58(a), at the rate
specified in the Internal Revenue Code at 26 U.S.C. 6621.
II. Per Diem payments
Complainant would like the $48 dollar per diem included in
his back pay calculation. As stated previously, the goal
of back pay is to make the victim of discrimination whole and
restore him to the position that he would have occupied in the
absence of the unlawful discrimination. Per diem payments are
designed to cover the living expenses of the road decontamination
technician while he is employed at a job site far away from home.
Per diem payments make an employee "whole" as far as covering the
living expenses while actually performing the job. Absent the
actual performance of the job and the living away from home, per
diem is a windfall to Complainant and not part of the make whole
policy. Thus recovery of per diem payments is denied.
III. Mitigation of Damages
Although Complainant is entitled to back pay from the date
of his discharge until the date of reinstatement, this period may
be limited if it is found that Complainant failed to mitigate his
damages. Complainant has a duty to make reasonable attempts to
mitigate his damages by seeking suitable or comparable
employment with reasonable diligence. Ford Motor Co. v.
EEOC, 458 U.S. 219, 231 (1982).
The Complainant has the original burden of ascertaining and
showing the gross back pay amount owed to him. NLRB v. United
Contractors, Inc., 713 F.2d 1322, 1330 (7th Cir.
1983). Because back pay promotes the remedial statutory
purpose of making whole the victims of discrimination,
unrealistic exactitude in calculating damages is not required and
uncertainties in determining what an employee would have earned
but for the discrimination, should be resolved against the
employer. Lederhaus v. Pascher, No. 91-ERA-13, Decision
and Order of SOL at 10 (Oct. 26, 1992), quoting Hairston v.
McLean Trucking Co., 520 F.2d 226, 233 (4th Cir. 1975).
Complainant has fulfilled this burden by
[PAGE 17]
showing the wages earned per hour ($6.50/hour regular pay,
$9.25/hr overtime pay, $48.00/day per diem pay) and the
approximate time he would have been employed (six months per year
or more). The approximate time Complainant would have been
employed by Respondent is an amount that is subject to some
degree of speculation as contract employees can work anywhere
from one month out of the year to eleven or twelve months out of
the year. However, as noted above, exactitude is not required.
Therefore, as suggested by Complainant in his post hearing brief,
a fair and reasonable amount of time of six months per year shall
be used to calculate damages.
Once Complainant has fulfilled his burden or showing a gross
back pay amount, the burden then shifts to the employer to
establish facts which mitigate its liability. NLRB v. United
Contractors, 713 F.2d at 1330; NLRB v. NHE/Freeway,
Inc., 545 F.2d 592, 593 (7th Cir. 1976); Sprogis v. United
Airlines, Inc., 517 F.2d 387, 392 (7th Cir. 1975). The
employer has an affirmative obligation to show that:
1) the Complainant failed to exercise reasonable diligence
to mitigate his damages, and
2) there was a reasonable likelihood that the plaintiff
might have found comparable work by exercising reasonable
diligence. Hanna v. American Motors Corp., 724 F.2d
1300, 1307 (7th Cir. 1984); Syvock v. Milwaukee Boiler Mfg.
Co., 665 F.2d 149, 159 (7th Cir. 1981).
Respondent must first show that Complainant failed to
exercise reasonable diligence in obtaining comparable employment
since November 21, 1988 (the day of Complainants discharge).
Reasonable diligence in seeking comparable employment includes
checking want ads, registering with employment agencies, and
discussing employment opportunities with friends and
acquaintances. Sprogis, 517 F.2d at 392.
Here, Respondent has produced no evidence on the mitigation
issue except for Complainant's testimony, which sufficiently
shows reasonable diligence. Complainant, on the other hand,
testified that he had previously submitted applications to every
decontamination service he had been aware of. (TR. 109).
Complainant also registered with the Alabama State Employment
Agency and several temporary agencies, regularly checked the help
wanted ads, applied in person at numerous construction sites,
applied to the U.S. armed forces, and tried to use personal
contacts to find work in the construction and nuclear service
fields. (TR. 125-129). Complainant has also sought employment
during the time he has operated his part-time fish farming
[PAGE 18]
business. (TR. 134-135).
Respondent has not brought forth any evidence that
Complainant has not used reasonable diligence. Respondent does
allege that Complainant has not used reasonable diligence in
seeking further employment in the nuclear field because
Complainant only sent in two applications after he was denied
unescorted access. This argument fails. First, using reasonable
diligence to find comparable work does not mean that the
Complainant must focus his job search in the nuclear field.
Second, Complainant had been denied unescorted access which is
akin to a "death sentence" in the nuclear field. Seeking
employment in the nuclear field would have constituted an
exercise in futility rather than reasonable diligence. Third,
even if Complainant was required to be reasonably diligent in
seeking employment in the nuclear field, the burden still rests
upon Respondent to show that some sort of employment in the
nuclear field was available to him after he had been denied
access. This Respondent did not do.
I find, therefore, that Respondent has not met their burden
of proof that Complainant failed to mitigate his damages.
IV. Lost Promotional Opportunities
Complainant contends that he is entitled to lost promotions
as a result of his wrongful discharge. Specifically, Complainant
asserts that he would have attained a position as health physics
technician had he not been wrongfully discharged.
To establish lost promotions, Complainant must show: 1)
that Complainant had the particular skills or other job-related
qualifications required by Respondent to be promoted to health
physics technician; 2) that the health physics technician
position was in a line of progression upward from the
decontamination technician position, that is, the decontamination
technician would normally be promoted to health physics
technician after some interval of acceptable performance; and 3)
that the prerequisite service as a decontamination technician is
not itself justified by business necessity aside from the skills
or other qualifications to perform the health physics technician
job. Locke v. Kansas City Power and Light Co., 660 F.2d
359, 369 (8th Cir. 1981).
Complainant has not fulfilled the first part of the analysis
since he did not acquire the hours or the necessary passing grade
on the health physics technicians exam. However, Complainant
asserts that had he remained employed with Respondent, he would
have accomplished both. Still, Complainant cannot fulfill the
[PAGE 19]
second part of the test since there is no natural progression
from one occupation to the next. Decontamination technicians can
remain as such for years without ever becoming health physics
technicians. The third part of the analysis need not be
addressed.
While it is entirely possible that Complainant would have
attained the position of health physics technician, the evidence
presented leads only to pure speculation that the promotion would
have been realized. As such, no additional back pay can be
awarded for a lost promotion.
V. Reinstatement/Front Pay
Reinstatement is a basic remedy provided for under the
statute. However, in some cases front pay is awarded in lieu of
reinstatement. The statute is silent on the issue of front pay.
42 U.S.C. 5851 (b)(2)(B). However, the remedy of front pay has
been developed by the courts and is commonly viewed as
prospective relief which may be awarded in cases where
reinstatement is not an appropriate remedy. See McCuiston v.
Tennessee Valley Authority, 89-ERA-6 (1991).
Westinghouse divested its decontamination services in
January of 1991. (CX-3). Westinghouse claims that it no longer
employs decontamination technicians in any capacity and does not
have any positions for which Complainant can qualify. (TR. 70,
174, 200-201).
Dr. Edwin Carter, a clinical psychologist who evaluated
Complainant, opined that in light of Complainant's psychological
condition, reinstatement with Respondent Westinghouse would be
detrimental to him and that retraining followed by employment in
another field would be much more beneficial. (TR. 58-59). It
would seem that the Complainant would find reinstatement and
employment with Respondent a difficult endeavor. His experiences
with Respondent would certainly effect his attitude towards them
and the damage done to his professional reputation will surely
not vanish. Front pay is particularly appropriate where discord
and antagonism between the parties would render reinstatement
ineffective as a make-whole remedy. Goldstein v. Manhattan
Industries, Inc., 758 F.2d 1435 (11th Cir.), cert. denied,
474 U.S. 1005 (1985). Therefore I find that the best course of
action is to award front pay to Complainant in lieu of
reinstatement.
Complainant in this case has asked for five years of front
pay. Considering the Complainant's age, this length of time is
reasonable. Complainant is entitled to five years of front pay
as a decontamination technician. Complainant shall receive $6.50
per
[PAGE 20]
hour for regular pay and $9.25 per hour for overtime work based
on a 72 hour work week. (CX-4, p.6). Complainant is therefore
entitled to $556.00 per week. Complainant would have worked
approximately six months out of each year or 26 weeks.
Complainant is hereby awarded 26 weeks of front pay per year for
five years beginning from the date of this decision.
VI. Compensatory Damages
Compensatory damages are awarded to make good or replace the
loss caused by the wrong or injury. While the purpose of
awarding compensatory damages is not to enable the injured or
wronged party to make a profit on the transaction, compensatory
damages involve the quantum of hurt to a Complainant resulting
from the injury or wrong. The general rule is that a wrongdoer
is liable to the person injured in compensatory damages for all
of the natural and direct or proximate consequences of his
wrongful act or omission, but he is not responsible for the
remote consequences of his wrongful act or omission. Natural
consequences are such as might have been reasonably foreseen by
the wrongdoer.
The measure of compensatory damages is such sum as will
compensate the person injured for the loss sustained, with the
least burden to the wrongdoer consistent with the idea of fair
compensation. 25 Corpus Juris Secundum, Section 71.
Compensatory damages may include general damages for mental
anguish, for physical pain and suffering, and can include injury
to reputation as a compensable psychic injury, which is a portion
of emotional distress damages which may include mental anguish,
emotional strain, and mental suffering. Nahmod, Civil Rights and
Civil Liberties Litigation, Section 4.03, "Compensatory Damages."
It is well settled that damages which are uncertain,
contingent or speculative in their nature cannot be recovered as
compensatory damages. It is also well settled that compensatory
damages cannot by used to punish the employer and that
compensatory damages are only those necessary to make a wronged
party whole and no more. Hedden v. Conan Inspection Co.,
No. 82-ERA-3, slip op. of ALJ at 7-8 (1982).
In this case, Complainant testified that he suffered from
emotional distress following his discharge by Respondent. Within
a year after losing the D.C. Cook position, Complainant consulted
a physician and was placed on Xanax for treatment of anxiety.
(TR. 123-124). More recently, Complainant was prescribed Zoloft
for depression. Id. He later began experiencing chest
pains, which still recur, and was put on Ambian and Tranzene.
(TR. 50, 123-
[PAGE 21]
124). The prescribing physician attributed Complainant's cardiac
condition solely to stress. (TR. 50). In the past six years,
Complainant has consulted two physicians and two psychologists
for his physical and psychological problems. (TR 42, 123, 154).
The latter psychologist Complainant has consulted, Dr.
Carter, concluded that Complainant suffered from an
"anxiety-based type of depression" and a "full-blown
post-traumatic stress disorder." (CX- 10, p.3). Dr. Carter
further concluded that Complainant's psychological problems were
permanent in nature and the direct result of his discharge by the
Respondent. (TR. 48, 54-55);(CX-10, p.3).
According to Dr. Carter, Complainant's wife and oldest
daughter have been seriously affected by Complainant's change in
behavior after his unlawful discharge and have experience severe
strain and pressure. (TR. 49-51). Complainant's condition
resulted in a serious strain in his relationship with his wife.
Id.
Respondent argues that all of Complainant's emotional
problems pre-dated his contact with Hydro. (See Respondent's
post hearing brief, p. 31). While the Complainant is not
entitled to recover damages for conditions which are due entirely
to a previous illness, the Respondent may be liable for damages
if his wrongful act aggravated or exacerbated the Complainant's
condition. Thus, the wrongdoer is not exonerated from liability
if, by reason of some pre-existing condition, his victim is more
susceptible to injury, and the Complainant may recover such
damages as proximately result for the activation or aggravation
of a dormant illness or condition. Creekmore v. ABB Power
Systems, No. 93-ERA-24 ALJ slip op. at 33 (1984).
If Complainant had a pre-existing condition, this condition
was certainly aggravated by Respondent's wrongful act. Being out
of work and denied unescorted access at the facility are
certainly situations which would result in stress and the
aggravation of any anxiety. That the Complainant may have had
anxiety problems in the past does not effect Respondent's
liability for aggravating or activation those problems.
Complainant may recover compensatory damages for injury to
reputation. Creekmore, at 37. According to Complainant
in Creekmore, it was essential to have a credible
professional reputation to be accepted in the nuclear industry as
a reliable and trustworthy employee. Id. at 5. The ALJ
agreed, calling the nuclear industry, "an industry which requires
impeccable personal
[PAGE 22]
credentials." Id. at 53.
Complainant in the present case needed perfect credentials
in order to remain employed in the nuclear field. Contract
decontamination technicians were rehired on the basis of their
past performances and professional reputations. Once a person's
professional reputation was tarnished, chances of continued
employment in the nuclear field were greatly diminished. (TR. 89
92,94,120-121).
Complainant suffered irreparable damage to his professional
reputation when he was disqualified for unescorted access at D.C.
Cook. Also, this disqualification information was spread outside
of D.C. Cook as the document denying Complainant unescorted
access also stated that "Chris from Equifax had been notified."
(CX-8). Additionally, Complainant was truthful in admitting that
he had been denied access on job applications for nuclear
industry positions. This also had the effect of spreading the
damage to his reputation outside of Westinghouse decontamination
services. Finally, Respondent has offered no evidence to rebut
the testimony and evidence of the effect of a denial of access on
a nuclear employee's reputation.
The Court of Appeals for the Seventh Circuit has taken the
approach, when awarding compensatory damages in wrongful
discharge cases, to look at the range of awards previously made.
Fleming v. County of Kane, State of Illinois, 898 F.2d 553
(7th Cir. 1990). In Fleming, the Court approved
$40,000.00 as within the range for emotional distress arising
from the discriminatory discharge. The Court approved the award
of $40,000.00 for Fleming's emotional distress as the record in
that case does show a rational connection between the evidence
and the damage award. The Court noted that the jury accepted
Fleming's testimony describing the depression he had suffered
during the period in question and his doctors testimony that "the
job stress which Fleming experienced during this period may have
resulted in an aggravation of his physical condition." Id.
at 562.
Moreover, the Fleming Court's review of those cases
where damages for emotional stress are sought led to the
conclusion that damage awards in this context have ranged from
$500.00 to over $40,000.00. In a similar case, a plaintiff was
awarded $35,000.00 in compensatory damages in a race
discrimination case. Ramsey v. American Air Filter Co.,
Inc., 772 F.2d 1303, 1313 (7th Cir. 1985). The ALJ in
Creekmore, recommended an award of $40,000.00 as
compensatory damages for the emotional pain, mental anguish and
the emotional stress the complainant experienced, as well as for
damage to his reputation in the nuclear power industry. slip op.
at 53.
In view of the foregoing precedents, I hereby award
Complainant the additional amount of $40,000.00 as compensatory
damages for emotional pain, emotional stress and anxiety, and
damage to his reputation in the nuclear power industry.
REMEDY
Complainant is entitled to specific damages in the area of
back pay dating from the date of discharge to the date of this
decision. Appropriate interest shall be paid on the award of
back pay in accordance with 26 U.S.C. 6621. Complainant has
sustained his burden of mitigating damages as he has sought
employment since his date of discharge. Complainant is not
entitled to back pay damages for lost promotions as no evidence
in the record clearly supports the contention that he was
entitled to a promotion as part of the natural progression of his
employment.
Complainant is not entitled to per diem payments as it does
not fit the scheme of the "make whole" policy.
Complainant is also entitled to an award of front pay dating
from the date of this decision to five years from that date.
Complainant will not be reinstated as it is not an appropriate
remedy in these circumstances.
Complainant is also entitled to compensatory damages in the
amount of $40,000.00 for emotional suffering and loss of
professional reputation.
Complainant is also entitled to reasonably incurred medical
expenses as a result of his discharge by Respondent. Complainant
has only submitted evidence showing a total expense of $291.15.
Complainant is also entitled to a provision herein directing
that Respondents immediately expunge from Complainant's personal
records all derogatory or negative information contained therein
relating to Complainant's work for the Respondents and his
termination. Respondent shall also provide neutral employment
references and shall not divulge any information pertaining to
Complainant's discharge, or the reasons for it, when inquiry is
made about Complainant by another employer, organization, or
individual. In addition, Respondent shall communicate with
Equifax in order to correct the statement made to Equifax that
Complainant was denied access to a nuclear facility. In
addition, Respondent shall post this Recommended Decision and
Order and the Secretary of Labor's decision at Westinghouse's
nuclear operations.
ORDER
It is therefore ORDERED that Respondent shall pay to
Complainant six months per year of back pay, at a rate of $556.00
per week (or $14,456 per year), from the date of discharge until
the date of this order, less interim earnings of $3091.33, plus
appropriate interest at the IRS rate, computed until the date of
payment to Complainant.
It is further ORDERED that Respondent shall pay to
Complainant six months per year of front pay, at a rate of
$556.00 per week (or $14,456 per year) from the date of this
decision and ending five years from this date.
It is further ORDERED that Respondent shall pay to
Complainant $40,000.00 as compensatory damages for emotional
suffering and loss of professional reputation.
It is further ORDERED that Respondent shall pay to
Complainant all medical expenses for himself and his family that
were reasonably incurred as a result of his discharge by
Respondent in the amount of $291.15.
It is further ORDERED that Respondent shall immediately
expunge from Complainant's personnel records all derogatory or
negative information contained therein relating to Complainant's
employment with the Respondents and his discharge. Respondent
shall also provide neutral employment references and shall not
divulge any information pertaining to Complainant's discharge, or
the reasons for it, when inquiry is made about Complainant by
another employer, organization, or individual. In addition,
Respondent shall communicate with Equifax in order to correct the
statement made to Equifax that Complainant was denied access to a
nuclear facility. In addition, Respondent shall post this
Recommended Decision and Order and the Secretary of Labor's
decision at Westinghouse's nuclear operations.
It is further ORDERED that Respondent shall pay to Kohn,
Kohn, & Colapinto, all reasonably incurred attorney fees and
costs.
It is further ORDERED that Counsel for Complainant submit,
within a period of twenty days from receipt of this Recommended
Decision and Order, any petition for costs and expenses,
including attorney's fees. 42 U.S.C. 6971(c). Counsel shall
simultaneously serve a copy of this petition on Respondent.
Respondent thereafter shall have twenty days to respond to said
petition.
Richard D. Mills
Administrative Law Judge
NOTICE: This Recommended Decision and Order and the
administrative file in this matter will be forwarded for review
by the Secretary of Labor to the Office of Administrative
Appeals, U.S. Department of Labor, Room S-4309, Frances Perkins
Building, 200 Constituion Avenue, N.W., Washington, D.C. 20210.
The Office of Administrative Appeals has the responsibility to
advise and assist the Secretary 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).
