U.S. Department of Labor Office of Administrative Law Judges
2600 Mt. Ephraim Avenue
Camden, NJ 08104
DATE: January 15, 1997
CASE NO.: 94-STA-0016
IN THE MATTER OF
KENNETH C. CLIFTON,
Claimant,
v.
UNITED PARCEL SERVICE,
Defendants.
Appearances:
Susan S. Gardner, Esquire
For the
Claimant
Charles Hampton White, Esquire
For the
Defendants
Before: Paul H. Teitler
Administrative Law Judge
RECOMMENDED DECISION AND ORDER ON
REMAND
This proceeding arises under the employee
protection provision of the Surface Transportation Assistance Act
of 1982, 49 U.S.C. §2305 (hereinafter "the Act"),
and the regulations promulgated thereunder, 29 C.F.R. Part 1978.
On January 12, 1995, I issued my Recommended
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Decision and Order in this case, finding for Defendant based on
Claimant's lack of credibility. Claimant appealed the Decision to
the Secretary of Labor. On May 5, 1995, the Secretary of Labor
reversed my decision and found for Claimant. The Secretary
remanded the case to me to determine damages. On July 18, 1996, I
held a hearing in Nashville, Tennessee on the issue of damages. At
that time, all parties had an opportunity to question the witnesses
and present evidence.
The recommended decision which follows is based
upon my thorough analysis and review of the record, argument of the
parties, and applicable statutes, regulations, and case law. Each
exhibit entered in evidence, although possibly not mentioned in
this Decision, has been carefully reviewed and considered in light
of its relevance to the resolution of the determination of the
proper calculation of damages.
Discussion
Claimant was dismissed from his employment in
violation of the Act on March 18, 1991. Pursuant to the Secretary
of Labor's Decision and Order dated May 5, 1995, Defendant was
ordered to reinstate Claimant. As of the date of this Decision,
Defendant has not offered Claimant the possibility of
reinstatement.
As a wrongly dismissed employee, Claimant has
the right to damages. These damages include back pay, interest on
back pay, health and medical benefits, expenses, attorney fees, and
front pay.
1. Back pay
Claimant is entitled to back pay from the date
of wrongful dismissal through the date of this decision. An award
of back pay under the Act is not a matter of discretion but is
mandated once it is determined that an employer has violated the
Act. Moravec v. HC & M Transportation, Inc., 90-STA-44
(Sec'y Jan. 6, 1992). In computing the amount of back pay, it is
appropriate to key to the earnings of a "representative
employee" in order to get a reasonable approximation of what
Claimant would have earned but for the wrongful dismissal.
Palmer v. Western Truck Manpower, Inc., 85-STA-16 (Sec'y
June 26, 1990), slip op. at 7, aff'd 12 F.3d 151 (9th Cir. 1993);
Reed v. National Minerals Corp., 91-STA-34 (Sec'y July 24,
1992). In this case, Claimant has argued that his earnings should
be keyed to the earnings of a fellow employee, Fryer, who was
ranked in seniority just below Claimant.1 Defendant challenges
this, arguing that Claimant has failed to demonstrate that he would
have bid for the same full-time position as Fryer. The Secretary
has noted that "back pay awards are, at best, approximate and
any 'uncertainties in determining what an employee would have
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