2. Complainant's Non-selection
Respondent claims that the complaint filed in this action
was incomplete as to allegations of illegal acts on their part
involving the non-selection of Complainant for a new position.
(Resp. Brief at p. 67)
This objection is entirely without merit, however, because
the Regulations do not require specificity in the complaint.
Rather 29 C.F.R. § 24.3 provides that the complaint "include a
full statement of the acts or omissions with the pertinent dates
which are believed to constitute a violation." (Emphasis supplied)
29 C.F.R. § 24.3(c). Moreover, the regulations require a
full investigation by the Administrator with a statement of the
findings and conclusions from their investigations. 29 C.F.R. §
24.4
[Page 15]
The issue of Complainant's non-selection was discovered
initially by TVA's own investigatory unit, the Office of
Inspector General (OIG) and then by the Wage and Hour
investigators. (PX 1, 4) Therefore, at the time the complaint was
filed these facts were not known to Complainant. Moreover, one
particular instance of non-selection did not occur until after
the filing of the complaint, Complainant's non-selection for the
Manager of Services position which occurred in August, 1989.
Accordingly, I find the complaint to be a complete statement of
the then-known instances of Respondent's illegal acts and the
evidence in the record of non-selection events fully admissible,
resulting from the required investigation under the implementing
regulations.
3. Spoliation Evidence
The Complainant alleges that the alteration of the internal
memo composed by Moreadith concerning the April 7, 1989 meeting
amounted to unlawful spoliation of evidence in anticipation of or
in preparation for trial. The common law policy regarding
spoliation of evidence applies to pretrial discovery proceedings
generally and permits a negative inference against the guilty
party that the destroyed evidence "would be unfavorable to the
spoliator" and can induce "a burden shifting presumption"
concerning the contents of the evidence. Welsh v. U.S. , 844 F.2d
1239 (6th Cir. 1988). The evidence in the record demonstrates
that the May 1, 1989 meeting between Moreadith and TVA's
corporate counsel did result in the amendment of this memorandum,
and, that the original memo is no longer available. However
these acts occurred well before the complaint was filed or when
notice was given to TVA of pending litigation.
The adverse inference against the alleged spoliator,
moreover, is not mandatory and is dependent upon the facts of each
case. Welch , at 1247. In this case, there is little to counter
the inference that TVA's counsel and Moreadith himself were
concerned about the implications of the April 7, 1989 meeting in
the context of Complainant's impending RIP. However, their acts
amounted only to housekeeping in anticipation of possible
litigation, not spoliation of evidence during the time of a pending
trial. Clearly, their acts of meeting on May 1, 1989 and
rewriting the memo demonstrate knowledge and an intent to gloss
over a rather significant event, the April 7, 1989 meeting. As
such, this evidence is fully admissible to demonstrate motive or
[Page 16]
knowledge of a potential problem in effecting Complainant's RIF.
See 29 C.F.R. § 18.404(b). However, I find that these acts do
not amount to an abuse of the pretrial discovery process that
would authorize invocation of the common-law spoliation
presumption, relieving the Complainant of carrying his burden to
prove a retaliatory discharge. Accordingly, the circumstances
surrounding the May 1, 1989 meeting and the modification of
Moreadith's memo are herein considered as circumstantial evidence
of Moreadith's animus toward the Complainant and his knowledge of
the possible consequences of his disciplinary meeting as well as
TVA's concern in this area, but, not as spoliation evidence.
3. Prima Facie Evidence
The first element of the required prima facie showing is
without contention. TVA is an employer subject to the Act.
The applicable provisions of the Act, Section 5851,
prohibits discrimination against employees who:
1. commenced, caused to be commenced, or is about
to commence or cause to be commenced a proceeding
under this chapter or the Atomic Energy Act of
1954, as amended, or a proceeding for the
administration or enforcement of any requirement imposed
under this chapter or the Atomic Energy Act of
1954, as amended;
2. testified or is about to testify in any such
proceeding, or;
3. assisted or participated or is about to assist
or participate in any manner in such a proceeding
or in any such manner in such a proceeding or in
any action to carry out the purposes of this
Chapter or the Atomic Energy Act of 1954, as
amended. 42 U.S.C. § 5851(a).
In light on the broad remedial purpose of Section 5851,
and, the statutes' wording encompassing "any action to carry out
the purposes of" nuclear safety regulations, the courts have
extended the coverage of the Act to internal safety complaints by
employees to their management. See Mackowiak v. Univ. Nuclear
Systems, Inc., supra; Kansas Gas & Electric Co. v. Brock , 780
F.2d 1505 (10th Cir. 14-8-5), cert. denied , 478 U.S. 1011 (1986);
[Page 17]
Donovan v. Stafford Construction Co ., 732 F.2d 954 (D.C. Cir.
1984); McCuistion, supra . Indeed, the compelling purpose of the
statute is "preventing intimidation" of employees and this
protection is clearly as necessary in the reporting of safety or
quality problems internally as well as directly to the Nuclear
Regulatory Commission. DeFord v. Sec'y of Labor, supra; See
Mackowiak , at 1163; Kansas Gas & Electric , at 1511-1513; Hasan v.
Nuclear Power Servs., Inc. , 89-ERA-24 (Sec'y of Labor, June 26,
1991).
The Complainant wrote a multi-page memorandum on March 29,
1989 to the TVA Board Chairman and to his most senior superior,
the Vice President of Nuclear Power, Oliver Kingsley, outlining
concerns about safety and management's inattention to existing
safety problems in the engineering division. Complainant
purposely broke from the chain of command after receiving no
favorable response to his concerns from his immediate supervisor,
Capozzi (Tr. 525). The memo, titled "Differing Staff Opinion
Concerning Safety Issues" included allegations of harassment of
engineers concerning their reports of safety violations, specific
examples of safety problems, and voiced concern about
management's decisions to reorganize, destaff, and to utilize an
owner-operator format as detrimental to safety (PX 2). Clearly, the
content of the memo is an internal safety complaint and thereby
falls under the Act as protected activity. Mackowiak, supra .
The memo in and of itself generated a considerable amount of
action from TVA management, primarily from the Complainant's
direct managers, Frederick Moreadith and Anthony Capozzi. Oliver
Kingsley had called Moreadith on April 6, 1989 and discussed the
memo (Tr. 37 5). Kingsley, at that time had knowledge of
Complainant's past "DOL case" and instructed Moreadith to
investigate the memo. Id. In addition, both Moreadith and Capozzi had
knowledge of the original draft of the memo, but were under the
impression that it had been retracted (Tr. 1025). Following the
phone conversation with Kingsley, Moreadith received a copy of
the memo and then discussed its contents with Capozzi. Moreadith
directed Capozzi to call the Complainant and schedule a meeting
with him that same day, April 7, 1989 (Tr. 1025-1030). Capozzi
credibly testified at the hearing that Moreadith was very upset
about the memo (Tr. 1203). Moreadith himself admits he was angry
because Complainant went outside the chain of command which left
him accountable to his superiors (Tr. 1028).
[Page 18]
Capozzi contacted Complainant at the Watts Bar site and
directed him to return to Knoxville for the meeting. Capozzi
offered unrebutted and credible testimony that Moreadith had
indicated that he could handle this incident similar to another
"whistleblower," an employee named Lau (Tr. 1214). According to
Capozzi, Moreadith conducted the meeting in a "semi-ass chewing"
manner (Tr. 1184). The tape recording of the meeting
demonstrates the disciplinary tone of the meeting, and, Moreadith's
concern that these complaints were directed over his head,
outside the chain of his command (PX 16, 15). It is clear from the
contents of the tape recording and through Capozzi's testimony
that this meeting was designed by Moreadith to be disciplinary in
nature rather than investigatory as Moreadith contended in his
testimony (Tr. 1026-1030). Moreadith testified at the hearing
that he had no intent to discipline or harass the Complainant
(Tr. 1030). Yet, he did not deny that he felt that the concerns
were "professionally irresponsible" or that he accused
Complainant of "convoluted logic" (Tr. 1094). Even though Moreadith
at the conclusion of this meeting directed Capozzi and
Complainant to discuss or "hash out' the problems outlined in the
memorandum, it is clear in this record that Moreadith was not yet
finished with DeFord (Tr. 1025).
Capozzi testified at the hearing, and in the Inspector
General's investigation, that after the April 7, 1989 meeting, it
was "inherently understood" that Moreadith did not want the
Complainant to continue in TVA's employ (Tr. 1184, Px 1 at p.
13). Coincidentally, these individuals were, at the same time,
involved in the confidential reorganization plans for the Nuclear
Power division and the elimination of Engineering Assurance
positions. Moreadith, as noted earlier, refused Raughley's offer
to find a position for Complainant in the newly organized Chief
Engineer's division, insisting that he was not going to give
DeFord any special treatment (Tr. 1031) This occurred within
days after Complainant's memo was sent to Runyon and Kingsley and
just prior to the April 7, 1989 meeting (Tr. 748). Moreover,
Complainant was one of two most senior subordinates in EA; but,
he alone was excluded from the reorganization plans for the
alleged reason that the plans were directed to be confidential
(Tr. 273, 960). TVA offered no reasonable explanation for his
exclusion, and, at least one lower ranking level employee was
included in the reorganization meetings (Tr. 961). Complainant,
in the end, was left totally uninformed about the proposed
elimination/consolidation of the engineering units in the Nuclear
[Page 19]
Power division of TVA.
Moreover, it is significant, that Henry Jones, who had been
involved in the confidential reorganization plans, was moved into
a position at the Brown's Ferry facility at the request of one of
Moreadith's other "subordinates" (Tr. 845, 1097). Dave Malone,
the lower ranking person on the reorganization committee was
placed in a position in the newly organized unit and Anthony
Capozzi found a position in Chattanooga, all before the announced
elimination of Engineering Assurance (Tr. 906-907, 1244). It is
clear from the evidence in the record that none of the individuals
picked by either Capozzi or Moreadith to be part of the reorganization
team received RIF notices. Thus, throughout this tangled
web I find a clear pattern of discriminatory treatment. In
particular, I note the exclusion of Complainant from the
reorganization process, Moreadith's refusal of Raughley's job offer
while tolerating or accepting the special treatment afforded
other participants in the reorganization. Coupled with the
disciplinary meeting, which demonstrates clear animus on the part
of Moreadith toward the Complainant I find that the motive to
terminate DeFord existed. Moreover, because Moreadith was the
author of the reorganization plan, he also had the opportunity to
implement his unlawful scheme.
As a result of the exclusive and secretive pattern of
events, all of the involved individuals found their way out of
Engineering Assurance, leaving Complainant alone in a pay group
and organizational structure destined for elimination. The
initial proposal to eliminate Engineering Assurance was developed
by Moreadith and presented to Kingsley on April 4, 1989, just
three days prior to the April 7, 1989 meeting (Tr. 1017). Throughout
the month of April, 1989, the plans became finalized and the
decision on what positions would be subject to a reduction in
force was made in late April, 1989 (Tr. 458). Significantly,
Moreadith, in his testimony, demonstrates some understanding as
to how the regulations on reductions in force work. He testified
that he determined the new organizational structure in which
Complainant's position was proposed to be eliminated (Tr. 1017-
1019). Moreover, he testified that "in most cases" it only
becomes clear who will be RIFed once the organizational structure
is established (Tr. 1021). Thus, Moreadith's testimony permits
the strong inference that he was aware that Complainant would
fall under the RIF provisions due to his planned elimination of
DeFord's position (Tr. 1020).
[Page 20]
The evidence of the May 1, 1989 meeting with TVA's in-house
counsel demonstrates a further recognition by Moreadith that the
events of the April 7, 1989 meeting could be damaging either to
him or to TVA (Tr. 1099-1100). It is especially significant that
within this time frame the reduction in force decisions had been
made, but, the notices had not yet been mailed, allowing an
inference of anticipatory behavior. In the end, the evidence in
the record supports a finding that in the process of a legitimate
reduction in force at TVA, Moreadith found the opportunity to
retaliate against the Complainant. As Moreadith himself candidly
testified in describing the circumstances of the RIF in 1989:
Well, you could say that the Nuclear Engineering
management set up a situation where the decision
(to RIF Complainant) would be automatic ... we came
up with the organization configuration ... we decided
what we wanted to be located where and we made some
preliminary decisions on how many persons we thought
would be needed ... then we came up with-position
descriptions where there were new jobs created ...
then we started to fill up the organization (Tr.
1077-1078).
Clearly, Moreadith had the motive, knowledge and
opportunity within the reorganization plans to orchestrate a
termination of DeFord disguised as a facially legitimate
reduction in force. Coupled with the evidence of his animus
against the Complainant, I find that the Complainant has met his
prima facie burden of demonstrating illegal discrimination
against him from the sequence of events surrounding the reduction
in force and planned reorganization of TVA in 1989.
At this juncture though, it important to note that I
perceive no direct and very little, if any, circumstantial evidence
of a general conspiracy through the ranks of TVA's upper
management against the Complainant. In particular, the phone call from
Vice President Willis to Martin Marietta, though perhaps imprudent,
is not enough on its own to demonstrate a concerted effort by TVA
officials to terminate DeFord. Willis may have acted improperly,
but there is no evidence or reason to believe that TVA officials
wanted to preclude Complainant from finding another position
outside their ranks.
Rather, I find that Moreadith, as the person with the
[Page 21]
authority and responsibility of the reorganization plan and as
the individual with a demonstrated illegal motivation, manipulated
the reduction in force within a very short time of the Complainant's
memorandum to Chairman Runyon and the disciplinary meeting
of April 7, 1989, so as to include the Complainant in the RIF.
His acts as TVA's Vice President of Nuclear engineering, though,
are fully attributable to the TVA unless there is rebuttal
evidence tending to prove that Complainant would have been
reduced in force despite Moreadith's illegal acts.
4. TVA Rebuttal Evidence
A. Reduction in Force
Respondent TVA correctly argues in rebuttal that the Courts
have increasingly scrutinized complaints of discrimination in the
context of facially valid reductions in force plans, affording a
presumption of "wide discretion" in agency's RIF reorganizations.
Gandola v. Fed. Trade Comm. , 773 F.2d 308 (D.C. Cir. 1988). The
Sixth Circuit Court of Appeals in one case of alleged age
discrimination went so far as to impose an additional prima facie
burden on a Complainant to prove that the RIF was not
presumptively valid. Barnes v. Gencorp , 896 F.2d 1457 (6th Cir.
1989). TVA, therefore, stands on the laurels of a general
presumption that Complainant's reduction in force must be legal
because they have wide discretion to reorganize their operation.
Further, TVA asserts that there is no proof of any bad faith or
under-handed scheming to demonstrate an illegal motivation in
this case.
However, to the contrary, as found above, Complainant has
demonstrated sufficient instances of bad faith and the necessary
prima facie elements, in the acts of Moreadith alone, to support
a finding of illegal adverse action against him within the
context of TVA's reduction in force. TVA insists that there were
legitimate management reasons for the reduction in force in
general which precludes the finding of any violation in the
circumstances of Complainant's protected activity and subsequent
termination. Although, I do not find overall RIF was illegally
motivated, the facts of this case nevertheless demonstrate that
as to the Complainant the Respondent's Vice President of Nuclear
Engineering seized upon the general reorganization and otherwise
legitimate reduction in force in order to retaliate against him
for his protected activities. The burden rests with Respondent
[Page 22]
to negate the evidence of illegal motivation and to provide
affirmative evidence that the Complainant would have been
terminated anyway.
B. RIF as applied
There is considerable evidence of Moreadith's animus
towards Complainant for the memo he wrote to Chairman Runyon and
Vice President Kingsley. Capozzi, the second in command in
Nuclear Engineering, offered numerous statements in his testimony
that Moreadith simply did not want Complainant around the organization
anymore, and, that Moreadith's feelings toward Complainant
were well known to subordinate managers (Tr. 1185, 1213).
The Respondent offers no explanation for the fact that
Complainant was the only line manager left in the Engineering
Assurance organization and thereby subject to the RIF. Moreover,
the Respondent fails to explain why the Complainant alone was
required to apply for replacement positions within the newly
organized unit while others were transferred to new positions
primarily before the RIF plans were even completed.
Significantly, Capozzi never told Moreadith about the singular job offer
made to Complainant, an offer authorized through Kingsley, and
made without Complainant applying for the position (Tr. 1212). I
find that this eleventh hour attempt to neutralize any illegal
behavior does not redeem Respondent because it has every
appearance of an illusory or pretextual offer. The facts demonstrate
that the job was subject to a later "downsizing" and required a
relocation that was known by Capozzi to be unacceptable to
Complainant (Tr. 1008, 1170-1171).
Finally, neither TVA nor Moreadith provide any rationale
for the refusal of Raughley's job offer for Complainant. Rather,
it is clear that Moreadith applied a distinct set of rules to
Complainant's situation while allowing others to be transferred
out of EA prior to the reduction in force. This prima facie
evidence of discriminatory treatment stands unrebutted.
Therefore, I find that Respondent has failed to satisfy its burden to
show that Complainant would have been subject to the reduction in
force notwithstanding his protected activity.
5. Damages
Upon a finding of a violation, 42 U.S.C. 5851 (b) (2) (B)
[Page 23]
prescribes that "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." In
addition, the statute authorizes the payment of compensatory damages
and "all costs and expenses (including attorney's and expert
witness fees) reasonably incurred ... in connection with the
bringing of the complaint." There is, however, no authority under
the statute for exemplary or punitive damages. Norris v.
Lumberman's Mutual Casualty Co. , 881 F.2d 1144 (1st Cir. 1989).
The Complainant requests his statutory remedy of reinstatement
along with affirmative orders that Respondent eliminate any
reference of his termination, negative evaluations, or notations
concerning his protected acts in his personal employment records,
a cease and desist order against any future determination, and
publication of this Decision and Order in the Employee newspaper,
"Inside TVA" (Compl. Brief at p. 131) In addition, Complainant
seeks compensatory damages for back pay, litigation, medical and
job search expenses, damages for pain and suffering, emotional
distress and damages to his professional reputation in the amount
of $800,000.00 (Compl. Brief at pp. 130-131). Complainant however
must provide "competent evidence" of any subjective injury and
proof that those injuries were the "proximate result" of Respondent's
unlawful acts. Busche v. Burkee , 649 F.2d 509, 519 (7th Cir.
1981)(quoting, Carey v. Piphus , 435 U.S. 247, 264 (1978));
Blackburn v. Metric Constructors, Inc. , 86-ERA-4 (Sec'y of Labor, Oct.
a. Reinstatement, Back Pay, and Expenses
The remedies outlined under the Act have the primary
purpose of making the injured employee whole from the injury incurred
as a result of the wrongful termination. See Blackburn, supra.
Reinstatement to his former or equivalent position is mandatory
under the Act along with any other "terms or conditions" such as
pension and medical benefits that may have been part of his
former position. However, the award of back pay under this "make
whole" scheme must be offset by any earnings accrued by the
Complainant following his wrongful termination.
The Complainant's annual salary at TVA at the time of his
termination was $72,700.00 (Tr. 328). Complainant entered into a
contract agreement for work at some time following his termination
[Page 24]
from TVA that offered a possible annual salary of $66,400.00 (Tr.
328). However, there is nothing in the record that reflects when
he began this work or how much work he earned under this contractual
situation. Thus, an accurate determination of the amount of
back pay is not possible on the facts in the record at this time.
Similarly, Complainant's pension and annuity benefits must
be restored or reimbursed, in full, as part of his conditions of
employment. However, again there is no evidence in the record of
Complainant's lost pension or annuity benefits to make such an
award. Furthermore, Complainant must be reimbursed for any
medical insurance or other benefits that were maintained as a
condition of his employment and that were lost upon his
termination. Finally, Complainant has requested reimbursement for his
attorney fees and costs as authorized under the Act, and, thereby
is due the "aggregate amount of reasonable costs" associated
therewith. 42 U.S.C. 5 5841. Again, the record fails to
provide documented evidence of these expenses.
Accordingly, the record must remain open to receive
evidence on the amount of back pay, other employment related
benefits due Complainant offset by any accrued earnings or
replacement benefits and documented evidence of attorney fees and
costs incurred in the bringing of the complaint. The Complainant
shall file within twenty (20) days of the affirmance of this
Recommended Decision and Order by the Secretary of Labor: (1) a
documented list of all claimed backpay, lost pension benefits, or
costs associated with medical insurance or other employment
related benefits that would otherwise not have been incurred as a
result of his wrongful termination, (2) a list of any income or
benefits which would constitute offsets to the above, (3)
documentary evidence of job search expenses, and, (4) a documented
schedule of attorney fees and costs incurred in the pursuit of
this claim. Respondent will have twenty (20) days thereafter to
file any objections with this office. Thereafter, a supplemental
recommended order for fees and costs will issue.
b. Compensatory Damages
Complainant alleges medical costs associated with ailments
that occurred or were aggravated by TVA's unlawful acts. These
costs are fully recoverable under the Act. DeFord v. Secretary
of Labor , 700 F.2d 281 (6th Cir. 1983) In accordance with this
provision, complainant has submitted a statement of medical
[Page 25]
expenses incurred from August, 1989 through November, 1990 (PX
46). However, these statements reflect the total expenses, not
the unreimbursed expenses for which Complainant is due
compensation. The record also contains a printout of Complainant's
medical claims under his group medical insurance for the years
1987 through 1989 (PX 44). The alleged violation arose at the
earliest in April, 1989 with the disciplinary meeting and the
decision to subject Complainant to the RIF. Accordingly, I find
that only expenses that arose after the protected activity and
initial adverse action of April 7, 1989 by the Respondent are
recoverable.
Dr. Mark D. Prince, the Complainant's personal physician,
testified in his deposition that the stress of Complainant's
employment from January, 1989 through June 1989 clearly aggravated
pre-existing ailments (PX 10 at p. 7). Complainant suffers from
a mitral valve prolapse condition, gastritis, probable gastric
ulcers and Crohn's disease which is an inflammation of the
gastrointestinal system (PX 10 at p. 5, 10). Though the mitral
valve coronary condition likely is a product of heredity, Dr.
Prince testified that Complainant's employment related stress
aggravated the condition causing a frequency of chest pain (PX 10
at P. 6). Similarly, though Complainant has suffered from
castritis for several years, his anxiety about his job has
increased his symptoms and gastric ulcers have developed only
within the last five years (PX 10 at p. 22). Dr. Prince
concluded his testimony indicating that a large percentage of
Complainant's medical visits within the last few years derived
from stress related aggravation of his ailments (PX 10 at p. 20).
Credible testimony of the Complainant and his wife
corroborates the effect of Respondent's illegal acts upon his
physical health. Mrs. DeFord testified that Complainant became
physically ill following the meeting of April 7, 1989 and
continued to suffer from sleeplessness, nervousness, and heart pains
(Tr. 726-727) Complainant testified that he suffers from tension
headaches and depression and that just prior to the hearing he
was diagnosed with two new ulcers (Tr. 339). Accordingly, I
find that stress originating with and deriving from the April 7,
1989 meeting and subsequent events aggravated Complainant's
pre-existing gastrointestinal and coronary conditions and caused
other nervous symptoms. Thus, Complainant shall file within
twenty (20) days of the affirmance of this Decision and Order by
the Secretary of Labor a documented statement of all unreimbursed
[Page 26]
medical expenses attributable to ailments that developed or were
aggravated during the time of Respondent's illegal activities.
Finally, Complainant alleges compensatory damages for a
variety of subjective injuries including pain and suffering,
emotional distress, damage to his professional reputation, and
loss of enjoyment of life. On issues of subjective losses,
Complainant carries the burden to establish both the "existence
and the magnitude" of these injuries. Busche, supra , at P. 519.
Moreover, there must be a "rational connection" between the
existence of the loss and the Respondent's illegal acts. Finally,
the amount of the award should fall in line with awards for such
injury in similar cases. McCuistion, supra slip op. at pp. 18-22
(Cataloging and reviewing similar awards).
Complainant has provided significant proof of harassment by
Moreadith in the April 7, 1989 meeting and his subsequent RIF
along with accompanying aggravation of his physical ailments to
warrant a finding of emotional distress. Complainant suffered
from "tension" headaches and depression throughout this period
and following his unlawful termination. His family life also
became adversely affected due to the reoccurring medical problems
and financial instability (Tr. 534-535, 728). In such
circumstances, Courts have found damages ranging from $10,000.00 to
$50,000.00. McCuistion, supra . Indeed, in his earlier case,
DeFord was awarded $10,000.00 for emotional distress in the
Secretary's remand decision. DeFord v. Tennessee Valley Authority ,
81-ERA-1 (Sec'y Remand Dec., April 30, 1984). The testimony of
Complainant's personal physician, Dr. Prince, and his wife provides
insight into the repercussions of Respondent's illegal acts.
Complainant suffered chest pains, developed new ulcers, suffered
sleeplessness and anxiety from his unlawful termination all of
which are indicative of emotional distress. See Fleming, supra;
McCuistion, supra.
In this second violation, Moreadith, the culpable TVA
manager, took it upon himself to not only to humiliate and
demoralize Complainant for his protected acts, but went so far as
to devise a scheme to terminate him. Moreadith set the stage
within his department to foreclose any transfer opportunity to
Complainant by letting it be known to his subordinates that
DeFord was not to be selected for a position within the new
organization. Complainant worked in this hostile environment for
over sixty days until his so-called automatic RIF became effective
[Page 27]
all the time expecting that a new position would become available.
It is entirely reasonable to believe that these circumstances
demonstrating a second round of discrimination against the
Complainant induced more stress than the demotion in 1980 that
resulted in the previous award.
In fact, in cases awarding damages for emotional distress,
the awards in discharge cases are generally higher than those
involving demotions or instances of harassment. See Webb v. City
of West Chester, Ill. , 813 F.2d 824, 836, n.3 & 4 (7th Cir.
1987)(cathloging cases); McCuistion, supra . I find that in this
discharge case, the Complainant suffered sufficient anxiety over
these events to aggravate serious medical conditions and cause
sleeplessness, headaches and depression indicating severe emotional
distress. See Fleming v. County of Kane, State of Ill. , 898 F.2d
553 (7th Cir. 1990); McCuistion, supra.
In considering the amount of recommended damages for emotional
distress I find compelling the fact that Moreadith, the wrongdoer,
received a $50,000.00, cash settlement for terminating his
employment relationship with TVA. It remains in this record unclear
whether the departure by Moreadith was truly voluntary. One fact
is clear, that Moreadith's employment with TVA terminated the day
after he refused to sign a statement for TVA's inspector general
regarding his investigation of DeFord's allegations of discrimination.
Although I would normally be inclined toward a lesser
amount for damages in this area, it strikes me as patently unjust
that the wrongdoer should receive more than the victim of his
actions. Accordingly, I find that Complainant has proven
significant damage from emotional distress attributable to Respondent's
acts and I hereby award $50,000.00 in damages, the same amount
given to Moreadith in settlement for termination of his employment
with TVA.
However, there is little authority to support a claim for
what Complainant alleges as "hedonic" damage or loss of enjoyment
of life. Moreover, such claims generally reflect the same underlying
emotionally stressful situation or financial difficulty which
are included in the other compensatory remedies. I, therefore,
do not find an award for hedonic damages warranted under the Act.
Finally, Complainant alleges, but fails to provide any
proof, that he incurred damage to his professional reputation due
the Respondent's illegal acts. Although Complainant alleges that
[Page 28]
being known as a whistleblower is detrimental professionally, it
appears he has been able to market himself within the nuclear
industry sufficient to maintain a reasonable income. In order to
justify some form of award for such damage, there must be proof
of detrimental loss. In this case, the Complainant has not shown
that he has been blacklisted or precluded from positions in the
nuclear or engineering fields due to Respondent's acts.
Accordingly, I find no calculable damage to Complainant's professional
reputation. Thus, no award is recommended for this item of
claimed damages.
III. RECOMMENDED ORDER
Based on the foregoing, it is hereby recommended that an
ORDER be issued by the Secretary of Labor providing that the
Tennessee Valley Authority is to:
1. Reinstate the Complainant to his former or equivalent
position of employment within the Engineering Unit of their
Nuclear Power Group or another comparable position at the
appropriate pay group level to reflect the current status of
his former position; and, restore all other applicable terms
and conditions of employment including, but not limited to,
his pension, annuity, life insurance, and health insurance
benefits.
2. Compensate Complainant for all salary lost due to his
unlawful termination of June 16, 1989 through the date of
his reinstatement at the same grade and pay level he would
have received if he had continued in their employ, with
interest, as provided in 29 U.S.C. 1961. The back pay
amount is to be offset by any post termination earnings to
be determined in a Supplemental Recommended Order.
3. Cease and desist any and all discrimination against
Complainant in any manner with respect to his compensation,
terms, conditions or privileges of employment because of
acts protected under the provisions of the Act and purge any
references concerning the Complainants protected act, the
memo of March 29, 1989 or his unlawful termination of June
15, 1989.
4. Reimburse the Complainant for medical expenses incurred
by him as a result of their unlawful acts to be determined
in a Supplemental Recommended Decision and Order.
HR>[Page 29]
5. Pay to the Complainant in the amount of $50,000.00 for
the emotional distress he incurred as a result of its
unlawful discrimination against him.
6. Pay to the Complainant or his counsel the amount of his
reasonable costs and expenses in pursuit of this claim. The
amount of such costs will be determined in a Supplemental
Recommended Decision.
It is further RECOMMENDED that Complainant by and through
counsel be hereby ORDERED to file documentation of claims for
back pay, medical costs, costs incurred in finding a new
position, and costs including attorney's fees for pursuit of this
claim as previously outlined within twenty (20) days of the
affirmance of this Recommended Decision and Order by the
Secretary of Labor.
It is further RECOMMENDED that, except as provided above,
all other remedial relief sought by Complainant be denied.
DANIEL J. ROKETENETZ
Administrative Law
Judge
[ENDNOTES]
1 In this decision and Order,
"ALJX" refers to Administrative
Exhibits; "PX" refers to Complaintant's Exhibits; "RX" refers to
Respondent's Exhibits; and "Tr." refers to the official
transcript.
2 On June 9, 1989 Complainant
submitted a letter to the Wage and
Hour Office of the Department of Labor in Knoxville complaining
of various events and his impending termination. However, he
advised Carol Merchant of that office to "hold up sending" the
complaint because he wanted to resolve the situation "within
TVA where (he) would not leave" (Tr. 482; PX 8). This "filing"
then was not processed and I find, as such, that it does not
constitute a filing of a complaint under the Act.