of the temperature of the reactor. In the event of an accident at a nuclear plant, the weir prevents or minimizes the hazardous effect. The "weirs problem" was classified as "significant" by the quality assurance auditors which meant it was to be immediately brought to the attention of NRC. TVA is a licensee of NRC. NRC inspects the quality assurance programs of its licensees to ensure their proper functioning. On November 21, 1979, the weirs audit was downgraded to insignificant by a TVA assistant manager who worked directly under the supervision of Mr. Sprouse, the manager of the Engineering Design Division. Further investigation was stopped.

    Apparently the weirs problem was indicative of the lack of support given the quality assurance people by management. The auditor who originally discovered the weirs situation and made the "significant" classification later reported that the declassification illustrated how Engineering Design Quality Assurance did not have sufficient authority or organizational freedom to identify quality problems, recommend or implement solutions. Deford's section felt that it was being bypassed by management and the morale was low. On July 2, 1980, Deford requested a hearing with Mr. Sprouse. P.L. Duncan, Deford's immediate supervisor, went along. At the meeting, Deford discussed the problem of management's lack of support for quality assurance.

    During July 7-11, 1980, NRC made its routine inspection of TVA's quality assurance functions. Deford participated in the investigation. He expressed the concerns of his staff regarding quality assurance's lack of independence. As an example, Deford brought the weirs problem to the attention of the NRC investigation team.

    A couple of weeks after the NRC investigation a meeting was held in Atlanta, Georgia, on July 25, 1980, with NRC and the top management of TVA. The purpose of the meeting was to review the findings of the investigation and to emphasize NRC's concern with TVA's quality assurance programs.

    In the meantime, TVA had begun its own audit to investigate the NRC findings. Numerous interviews were conducted with the Quality Assurance Engineering staff, including one with Deford. On August 11, 1980, Deford was summoned to a meeting and informed that the internal TVA audit had revealed a problem in his section.

He was told that he was being transferred back to the Electrical Engineering Branch. Deford was then told to proceed to another meeting where all the staff members of his section were assembled. There his transfer was publically announced.

    Deford reported to work at the Electrical Engineering Branch where he was greeted in an ungracious fashion and assign non-supervisory work. Deford testified that he suffered embarrassment and humiliation when he was transferred. He developed chest pains and had difficulty resting at night. He also testified that he became depressed. He stopped working on September 11, 1980. He was admitted to a hospital for evaluation on September 21, 1980.

    On September 10, 1930, Deford filed a claim with the United States Department of Labor, stating that his transfer to the Electrical Engineering Branch from the management position at the Quality Assurance Engineering Section was the result of deliberate discrimination. Deford requested the following remedies: (1) that he be returned to the Quality Assurance Engineering section as a manager; (2) that his absence from work since September 12, 1980, be changed from sick leave to administrative leave and that he be given back pay since September 12, 1980; (3) that his medical expenses be paid; (4) that he be given damages for pain, suffering, and mental anguish and for damage to his reputation. On October 9, 1980, the Administrator for the Wage and Hour Division found that Deford had been discriminated against following his cooperation with the NRC investigation. He was awarded reinstatement in the position from which he was transferred or a comparable supervisory position. The decision also determined that Deford was to be placed on administrative leave with full pay from September 12, 1980, until competent medical authorities determine that he is able to return to work and that he is to be reimbursed for all medical and legal expenses incurred by him dating from the period of his transfer. The decision was appealed to the office of Administrative Law Judges by both Deford and TVA.

    The issues to be determined are (1) whether Deford's transfer from the Quality Assurance Engineering Section to the Electrical Engineering Branch was discriminatory within the meaning of the Act and regulations; (2) whether medical expenses resulting from discrimination are recoverable under the Act and regulations;

whether Deford's medical expenses were incurred as a result of TVA's alleged discrimination; and (4) whether damages for pain, suffering, and mental anguish or damages for loss of professional reputation are recoverable under the Act and regulations.

    The first issue to be determined is whether TVA discriminated against the complainant as prohibited by the Act and regulations. Deford alleges that he was assigned to a less attractive position within TVA and was harassed by TVA officials for having cooperated with NRC's investigation of his quality assurance section. The Act and regulations were violated because 29 C.F.R. § 24.2 provides that an employer cannot discriminate against an employee for assisting or participating in a proceeding for the administration or enforcement of a requirement to carry out the purposes of the Act. During the NRC investigation, Deford expressed the concerns of his staff that quality assurance functions were being ignore by management, specifically mentioning the handling of the weirs problem as an example.

from a private office to sharing an open area with an engineer of a lower grade. He had to work at a table and was not given a telephone. While his salary and grade level remained unchanged, the new job was far less attractive and prestigious than his previous position. He was assigned tasks that were below his proven capabilities and he had no supervisory responsibilities.

    Deford testified that when he first reported to the Electrical Engineering Branch Chief on the day of his transfer, he was told that the problems he had experienced "upstairs" would not be tolerated. Additionally, he was told that his assignment was to be permanent. His immediate supervisor informed Deford that his name was not to appear on any quality work and that he was to remain invisible. Thus, Deford states that the transfer and the subsequent work atmosphere illustrate that he was being discriminated against by TVA because of his cooperation with NRC.

    In light of all the evidence presented, I find that Deford's transfer was a deliberate retaliation for his cooperation with NRC and his attempts to get his Quality Assurance Engineering section recognized by management. The first indication that the transfer was a reprisal is evidenced in the manner Deford was moved. Deford was never informed that he was going to a new branch until the morning the assignment became effective. His new supervisor had been aware of the change for a few days. Additionally, Deford was never told privately. On the morning he was transferred he attended a meeting with various managers and was told that he had to leave Quality Assurance and return to the Electrical Engineering Branch. Minutes later this information was imparted to a summoned group of persons who Deford had previously supervised. The manner in which Deford's transfer was made is not that expected for even a low level manager.

    Secondly, the evidence indicates that contrary to TVA's assertions, Deford was not a bad manager. He was well liked by his staff and appeared to be performing his job adequately. He had received satisfactory performance ratings since he arrived TVA in 1971. P. Duncan, Deford's immediate supervisor before the transfer, testified that Duncan adequately performed his duties. At one tine Duncan filled out a Supervisor Appraisal form for the United States Department of Energy in which Deford's performance was given the highest possible rating.

    Thirdly, Ralph M. Pierce, the assistant manager of the Thermal Power Engineering Design Branch of the Engineering Design Division testified that Deford's transfer to the Electrical Engineering Branch was temporary. Deford, however, testified credibly that he had gone to Mr. Sprouse, Pierce's supervisor and the person directly responsible for Deford's transfer, to request a better caliber of work. Sprouse stated that there would be no changes before twelve to eighteen months and that he had no assurances that Deford's status would change. Apparently, the TVA managers responsible for the transfer expected Deford to remain in the less attractive job indefinitely.

    Fourthly, TVA tried to indicate that there were personality conflicts between Deford and higher level managers. The evidence indicates that Deford was a forceful person who felt that his section was being overlooked by his branch chief, Mr. J.L. Parris. This affected the manner in which Parris and Deford got along. A personality conflict did develop. However, Deford got along with his immediate supervisor Duncan and other personality problems were not presented. The alleged conflicts in personality are unpersuasive rationales for the treatment of Deford.

    Finally, an internal TVA audit of NRC's findings was conducted by Mr. Pierce. He issued a tentative assessment in which Deford was singled out as "one very strong individual in EN DES QA staff who is instrumental in influencing the opinions and operation of the staff and input to management." Mr. Pierce admitted that the reference was intended as a negative comment. It is apparent that after the NRC investigation, TVA viewed Deford as a trouble- maker because he advocated strong quality assurance input into management. TVA took actions to quell his type of behavior.

    In summary, I find that Deford was performing his job adequately as manager of the Quality Assurance Engineering Section and that he was well liked by his staff. He became increasingly concerned with quality assurance's lack of support and independence from management as evidenced by the handling of the weirs problem. He attempted in early July to bring the situation to the attention of his supervisors but felt that it was not taken with appropriate seriousness. When NRC investigators arrived a few days later, Deford expressed to them his concerns. His fears and those of his section were transferred to NRC which issued findings that questioned the effectiveness of TVA's quality assurance functions. NRC's findings spurred an internal TVA audit in which Deford was singled out as a troublemaker. Thus, his transfer became a

way to retaliate against Deford and a way to warn others that problems with quality assurance functions were not to be discussed with people from NPC. The Act and regulations were violated when TVA management discriminated in this fashion.

    Deford submits that he suffered medical problems due to stress caused by TVA's acts of discrimination necessitating his leaving work and spending a week in the hospital. Deford asks to be reimbursed for all the medical expenses incurred as a result of TVA's actions. TVA argues that medical expenses are not awardable under the Act and regulations because the only cause of action available for work related injuries is under the Federal Employees Compensation Act (hereafter referred to as FECA), 5 U.S.C. § 8101 et seq.

TVA cites numerous cases to support its position that FECA provides the exclusive remedy for injuries arising out of and in the course of employment. As further illustration, the statute establishing TVA which extends the benefits of FECA to TVA employees is cited. 16 U.S.C. § 831 (b). TVA's argument appears plausible at first glance; however, closer scrutiny reveals that the argument is defective.

    All causes of action by federal employees against the government do not arise under FECA. FECA is a workers' compensation statute and as such compensates employees for work related injuries regardless of the government's liability. On the other hand, the Energy Reorganization Act is based upon the employer's liability. Under the Act, compensatory damages are only recoverable if the employer discriminated against the employee. As recovery is dependent upon the employer's liability, the Act differs from FECA. A new cause of action is created that authorizes compensatory damages for employer misconduct. The damages are not related to those awardable under FECA and if medical expenses are caused by conduct violative of the Act, the Act authorizes the Secretary of Labor to order their reimbursement.

    The purpose of compensatory damages is to compensate the claimant for a wrong or injury suffered and to restore the claimant to the position that he or she was in before the wrong or injury occurred. See, e.g., Varlack v. SWC Caribbean, Inc., 550 F.2d 171 (3d Cit. 1979); Freeport Sulphur Co. v. S/S Hermosa, 526

F.2d 300 (5th Cir. 1976). Generally, medical expenses incurred as a result of the wrong or injury are recoverable to make the claimant whole. There is no evidence that Congress intended to exclude medical expenses from the Act's definition of compensatory damages.

    It also should be noted that although FECA applies to TVA employees, the injuries referred to in the workers compensation statute are not those contemplated by the act presently under review. FECA covers work related injuries caused by accident or occupational disease, not injuries due to employer discrimination. See. e.g. Sullivan v. United States, 428 F. Supp. 79 (E.D. Wis. 1977). Given the above analysis, I find that the Act and regulations authorize the award of medical expenses if the expenses are incurred as a result of prohibited discriminatory conduct on the part of the employer.

    Medical expenses are recoverable only if they are incurred as a result of a violation of the Act. TVA submitted no evidence to refute Deford's demonstration of causality. Deford testified that he began to develop medical difficulties after his transfer. He was embarrassed and humiliated at being told of the change in front of his colleagues and subordinates. He felt that his new position was demeaning and that he was being harassed by his supervisors. The stress caused him to become depressed and he had difficulty sleeping at night. He began to experience chest pains accompanied by shortness of breath.

    Dr. Wender, a physician who had been monitoring Deford's heart condition since 1970, was consulted. In 1970 Deford discovered that he had a mitral valve prolapse, a defect commonly known as a heart murmer. As Dr. Wender found no changes in this asymptomatic defect, Deford went to see his family doctor, Dr. Duncan. Dr. Duncan had Deford admitted to a hospital on September 21, 1980, for evaluation. During his one week stay, Deford was examined by Dr. Duncan and an internist, Dr. Mark Prince.

    Deford offered the deposition of Dr. Prince into evidence. Dr. Prince stated that he performed several tests upon Deford and could not find anything specifically wrong with him. Prince felt that the symptoms may have been caused by depression and asked Dr. Gilliam to see Deford. Dr. Gilliam is a psychiatrist who Deford is still seeing, Dr. Prince testified that Deford's

lack of breath and palpatations in his chest were caused by work related stress. The stress caused the otherwise asymptomatic heart murmer to act up. Dr. Prince also agreed that Deford should not be working while in the medical condition that he last saw him in.

    The deposed Dr. Prince concluded that Deford's poor health stemmed from the recent crises at work. I find his testimony credible. As Deford's medical problems were caused by discriminatory conduct by TVA officials in violation of the Act and regulations, the medical expenses incurred are recoverable. The decision of the Administrator of the Wage and Hour Division, united States Department of Labor, that TVA be ordered to reimburse Deford for medical expenses should be affirmed.

    Deford appeals the Administrator's decision denying his request for $50,000 in damages for pain, suffering, and mental anguish and for the loss to his professional reputation. 42 U.S.. § 5851(b)(2)(B)(ii) provides that if the Act is violated, the Secretary of Labor may order the violator to pay compensatory damages to the complainant. Compensatory damages are those damages necessary to make a wronged party whole. Deford is entitled to be made whole for the losses he sustained as a result of his wrongful discrimination. Thus, if Deford suffered pain, suffering, and mental anguish or loss to his reputation, the Act authorizes compensation for those injuries.

    Before recovery for Deford's nervousness, depression, or other mental anguish can be awarded, some evidence must be offered to enable an informed judgment as to the existence, nature, duration, and seriousness of these mental conditions. Deford offered no testimony to determine the nature, duration, or seriousness of the anguish he evidently experienced as a result of the discriminatory actions of TVA. While recovery cannot be denied because the amount is difficult to calculate, it cannot be awarded in a total vacuum. Accordingly, I find that the complainant has not offered sufficient evidence for an award of damages for the mental injury allegedly suffered.

    On the other hand, there is evidence that Deford's professional reputation suffered. His transfer was announced

to all the employees in his section. The supervisors responsible for the transfer tried to make it appear that Deford was a poor manager. When he arrived at the Electrical Engineering Branch, his new supervisors had already learned that Deford had supposedly caused problems and that the upper levels of management were dissatisfied with his work. Deford's transfer was made partially as an example to other quality assurance personnel about what would happen to those who cooperate with NRC; however, the discriminatory actions were accompanied by innuendos of poor managerial ability. Even after Deford is reinstated, there will be rumors and suspicions concerning his professional reputation. Thus, Deford has shown that his professional reputation at TVA suffered.

    Deford also offered evidence that his reputation was known outside of the TVA community. At the hearing, Deford testified that while at TVA, he had been recognized by various professional societies in the engineering field. He was a member of two committees. In addition to the two committees, Deford chaired committee on quality assurance systems for the American Society of Testing and Materials. The American Society of Testing and Materials is a national organization composed largely of members from the utility industry. There is no question that Deford was regarded highly in his professional field nationwide. This national reputation was injured by the treatment he received subsequent to the NRC investigation. If the respondent was ordered to post announcements at TVA or in local newspapers acknowledging its discriminatory behavior, Deford would still not be made whole because his professional abilities were nationally known. Nor will reinstatement alone adequately restore the damage caused by his transfer to the non-supervisory position.

    In order to effectuate the purposes of the Act and to insure that this complainant is made whole, damages should be awarded for this loss of reputation. Precise measurement of the amount of the injury is not possible. Recovery should not be precluded because of the difficulty in calculating the amount of damages. Deford requested $50,000 to compensate for the injury to his professional reputation. As the wrongdoer in this case, TVA should have the burden of showing that the $50,000 requested is not a reasonable amount for the loss sustained. This burden has not been met.

    I find that a loss to Deford's professional reputation has

been shown. Reinstatement alone will not alleviate the suspicions that naturally accompanied the treatment of Deford. In order to compensate for the injury to Deford's reputation as an effective manager and quality assurance engineer, damages should be awarded. The $50,000 requested is a reasonable amount to award Deford for the professional injury he sustained.

    In conclusion, I find that the Administrator's decision should be affirmed. Additionally, under the authority of the Act and regulations, Deford should be awarded compensatory damages of $50,000 representing the injury to his professional reputation.

    For the foregoing reasons, I ORDER that the October 9, 1930 decision of the Administrator of the Wage and Hour Division, Employment Standards Administration, U.S. Department of Labor be and is hereby affirmed.

    I FURTHER ORDER that the respondent, the Tennessee Valley Authority, compensate the complainant, William Dan Deford, in the amount of $50,000, for injury to his professional reputation.

       EVERETTE E. THOMAS
       Associate Chief Administrative Law Judge

Dated: 7 JAN 1981
Washington, D.C.

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NOTICE: Pursuant to 29 C.F.R. § 24.6(a) this recommended decision shall be forwarded, along with the record, to the Secretary of Labor for a final order.