earned but for the discrimination should be resolved against the discriminating employer.'" Pettway v. American Cast Iron Pipe Co., 494 F.2d 211, 260-261 (5th Cir. 1974). I find that based on Defendant's method of using seniority to determine promotions and the testimony of Claimant that he would have bid for the full-time position which Fryer was given, (TR at 34), the use of Fryer as a representative employee would most accurately reflect the approximate earnings that Claimant would have earned had he not been dismissed.

    Since Claimant was dismissed on March 18, 1991 and Fryer did not begin his new full-time position until September 30, 1991, (TR at 49), Claimant's back pay for the time period of March 18, 1991 through September 30, 1991 will be based upon Claimant's actual average weekly wage before dismissal. Claimant's back pay for the period from October 1, 1991 through the date of this decision will be based upon the earnings of Fryer for that same time period as a representative employee.

    At the time of his dismissal, Claimant's average weekly wage was $309.58. There are 28 weeks in the period from March 18, 1991 through September 30, 1991. Therefore, for this period of time, Claimant is entitled to $8,668.24. For the remaining weeks in 1991, Claimant should receive damages commensurate with the earnings of representative employee Fryer. In Claimant's brief it is noted that Fryer earned $24,715.40 for the period of March 18, 1991 through December 31, 1991. There are 207 work days in this period, therefore, Fryer earned $119.40 per day. There are 66 work days in the period of October 1, 1991 through December 31, 1991, the remaining period in 1991 for which Claimant is entitled to compensation. Therefore, Claimant will receive $7,880.40 in back pay damages for the period of October 1, 1991 through December 31, 1991.

    For the years 1992 through 1995, Claimant will receive back pay damages commensurate with the earnings of representative employee Fryer for those same years. In 1992, Fryer earned $37,425.22. In 1993, Fryer earned $42,988.78. In 1994, Fryer earned $45,426.26. In 1995, Fryer earned $46,836.99. Therefore, Claimant will receive equivalent amounts for the above stated time periods.

    For the time period of January 1, 1996 through the date of the hearing in this matter on July 18, 1996, Claimant will receive $27,374.40, which amount represents Fryer's earnings for this period. There are 29 weeks in the period of January 1, 1996 through July 18, 1996. Therefore, Fryer was earning an average weekly wage of $943.94 or $188.79 per day. Claimant will therefore receive $188.79 per work day from July 19, 1996 until the date of this decision on January 15, 1997. There are 129 work days in the period of July 19, 1996 through January 15, 1997. This

means that Claimant will receive $24,353.91 for the period of July 18, 1996 through January 15, 1997.

    The total of Claimant's back pay is $240,981.20.

    The period for which Claimant shall receive back pay will run from March 18, 1991 through the date of this decision. Defendant contends that since Claimant procured employment at Warioto Farm in 1996 and earned in excess of what he would have earned from Defendant, the back pay award should not extend past the time of that employment. However, Claimant testified at the July 18, 1996 hearing that he quit the job at Warioto Farm after only one month because he was being required to work 7 days a week which was not required at his former position with Defendant. No contradictory evidence was presented. Where an employer is found to have violated the Act and the Claimant is found to be entitled to an offer of reinstatement to his or her former position and to back pay, the burden of showing that Claimant failed to make reasonable efforts to mitigate damages is on the employer. Polewsky v. B & L Lines, Inc., 90-STA-21 (Sec'y May 29, 1991). In addition, where this occurs, the claimant does not breach the obligation to mitigate damages by declining to accept a job that is not substantially equivalent to his or her former position with the employer. Id. I find that Defendant has failed to show that Claimant's position at Warioto farms was substantially equivalent to his employment at Defendant's. In addition, I find that Claimant cannot be said to have failed to mitigate his damages. Therefore, Claimant's back pay will not be discontinued until the date of this decision.

    From the total amount of back pay as calculated above, all of Claimant's interim earnings at other employment will be subtracted. The amount subtracted, however, will not include any payments received by Claimant of unemployment compensation. Under the Act, 49 U.S.C. app. 2305(c), employment compensation is not deductible from the amount due for back pay. Hadley v. Southeast Coop. Serv. Co., 86-STA-24 (Sec'y June 28, 1991); Moravec, 90-STA-44. Claimant's interim earnings are as follows:

Year      Place of Employment           Earnings

1991      Legacy Farm                   $2,307.84

1992      National Health Labs          $4,035.10
          Robinwood Farm                ,345.00

1993      National Health Labs          $8,970.87
          Noel ICE                      $224.00

[Page 5]

1994      Hidden Acres Farm             $8,555.50
          Digby Truck Line              $4,116.90
          Noel ICE                      $267.75
          Whirlpool                     $164.16

1995      Hidden Acres Farm             $13,929.53

1996      Hidden Acres Farm             $2,644.35
          Warioto Farm                  ,500.00
          Kenny Clifton                 ,300.00
          C.F. Freightline              $700.00

                              Total     $50, 061.00

    Therefore, Claimant's back pay total with interim earning deductions is $190,920.20.

    2. Interest

    Claimant will also receive interest on his back pay total. In STAA cases, interest on back pay is calculated in accordance with 26 U.S.C. 6621, which specifies the rate for use in computing interest charged on underpayment of Federal taxes. Phillips v. MJB Contractors, 92-STA-22 (Sec'y Oct. 6, 1992). Pursuant to this statute, Defendant is ordered to pay interest on $190,920.20 to be calculated pursuant to 26 U.S.C. 6621, and to accrue until such time as the back pay amount is paid.

    3. Health and Welfare Benefits

    In addition to receiving back pay with interest, Claimant is also entitled to receive health and welfare benefits of which he was deprived due to his dismissal. In this case, Claimant incurred $426.37 in insurance costs and $407.80 of expenses and deductibles that would have been paid by Defendant. Therefore, Claimant will receive $834.17 in health and welfare expenses.

    4. Expenses

    Claimant is also entitled to costs associated with the wrongful dismissal. Claimant has submitted claims for costs from storage of the belongings from his apartment in the amount of $119.00. I find that this is a reasonable cost for storage and that the need for storage was a direct result of the wrongful dismissal. Therefore, Claimant is entitled to $119.00 for storage. In addition, Claimant has requested reimbursement for the costs associated with having to declare bankruptcy. I also find

that the need to declare bankruptcy was a direct result of his wrongful dismissal and therefore grant Claimant's request for reimbursement of those costs totalling $661.00.

    I deny Claimant reimbursement for the cost of a briefcase as I find that this purchase is too attenuated an expense. In addition, I deny Claimant the postal costs incurred as part of this litigation as I find that all compensable costs should have been incurred by Claimant's counsel.

    5. Attorney's Fees

    Attorney's fees will also be awarded in this case. Claimant has incurred attorney's fees in the amounts of $105.00 for the services of Russell Perkins, ,160.00 for the services of Mary Parker, and $3,870.00 for the services of Susan Gardner with an additional $70.22 in costs. I find that the costs associated with the services of Mr. Perkins and Ms. Parker are reasonable and should be reimbursed. I find that Ms. Gardner's hourly rate of $150.00 per hour is reasonable and grant the request for attorney fees and costs in the amount of $3,870.00 plus $70.22.

    6. Front Pay

    Finally, since Claimant was unlawfully dismissed and Defendant has continued to ignore an order by the Secretary to reinstate Claimant, I find that Claimant is entitled to receive 6 months of front pay in lieu of reinstatement. Doyle v. Hydro Nuclear Services, 89-ERA-22 (ARB Sept. 6, 1996). The award of front pay will be calculated based upon the representative employee's last known weekly wage of record of $943.94. There are twenty-six (26) weeks in the 6 month period of January 14, 1997 through July 14, 1997. Therefore, Claimant will receive $24,542.44 in front pay. This amount, however, must be appropriately discounted to account for future value. See Price v. Marshall Erdman & Associates, Inc., 966 F.2d 320, 322 (7th Cir. 1992).

    1. Pay Claimant back pay of $190,920.20 with interest, to be calculated pursuant to 26 U.S.C. 6621, and to accrue until such time as the foregoing back pay amount is paid;

    2. Compensate Claimant for medical and health benefits that would have been made by insurance absent the wrongful termination. Further, Defendant must pay attorney expenses and incidental expenses as outlined in the body of this decision;

    3. Since Defendant has continued to ignore

the Secretary's order of reinstatement, Defendant is ordered to pay Claimant front pay for six months, totalling $24,542.44, in lieu of reinstatement. This amount is to be appropriately discounted to account for future value.

      PAUL H. TEITLER
      Administrative Law Judge

Dated: January 15, 1997
Camden, NJ
PHT/MEK

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 Administrative Review Board, United States Department of Labor, Room S-4309, 200 Constitution Ave., N.W., Washington, DC 20210 The Administrative Review Board 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).