In a decision of February 10, 1983, the United States Court
of Appeals for the Sixth Circuit reviewed my decision of March 4,
1981, as well as my supplementary Orders of June 26, 1981
in this case. The Court of Appeals upheld my finding that the
Tennessee Valley Authority (TVA) discriminated against DeFord
in violation of section 5851 of the Energy Reorganization
Act (ERA), but remanded the case to me to "revise the entire
package" of remedies for this discrimination. There were
several elements of the package of remedies which I will
refashion in accordance with the court's decision.
I - REINSTATEMENT
TVA shall immediately reinstate Mr. DeFord to his former
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position. If his former position no longer exists or there
is no vacancy, TVA shall apply to the Administrative Law Judge
for approval of the job in which it proposes to place DeFord,
with an explanation of the duties, functions, responsibilities,
physical location and working conditions of the job sufficient
for the ALJ to determine whether it is comparable to DeFord's
former position.
II - COMPENSATORY DAMAGES
In my initial decision in this case of March 4, 1981, I
did not consider each element of DeFord's claim for compensatory
damages because I had held that such damages were not recoverable
under the ERA. Since that ruling has been overturned by the
Court of Appeals, it becomes necessary for me to consider
whether, in the words of the court, compensatory damages are
"appropriate."
There were three elements of DeFord'd claim for compensatory
damages: medical expenses; damages for emotional pain and
suffering and mental anguish; and damages for injury to
reputation. The ALJ had found that DeFord's medical problems were
caused by TVA's discriminatory conduct and that his medical
expenses, therefore, were recoverable. That finding is supported
by the record and I adopt it. However, the ALJ held that
DeFord had not presented sufficient evidence to support a
finding on the nature and extent of mental suffering caused
by the discriminatory action of TVA. These two facts seem
inconsistent. DeFord's medical problems, namely complication
of his pre-existing mitral valve prolapse problem with symptoms
of chest pain and tightness, difficulty in swallowing, nausea
and indigestion, were the result of stress, anxiety and depression
over his work situation. Stress, anxiety and depression
are mental conditions of which his physical symptoms are specific
evidence. DeFord was still seeing a psychiatrist at the time
of the hearing, and Dr. Prince, an internist who had examined
DeFord, was of the opinion that DeFord should not return to
work while these symptoms persisted. There is sufficient
evidence in the record of DeFord's mental and emotional distress
as a result of TVA's discriminatory actions for an award of
damages. cf., Aumiller v. U. of Delaware, 434 F. Supp. 1273
(D.Del 1977); Donovan v. Reinbold, 433 F.2d 738 (9th Cir.
1970); Seaton v. Sky Realty Co., Inc., 491 F.2d 634 (7th Cir.
1974); Sterzing v. Fort Bend, Indiana, School District, 376
F.Supp. 657 (S.D. Tex. 1972).
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Although I agree that DeFord has suffered damage to his
professional reputation, I do not believe it was as extensive
as indicated by the ALJ. TVA did attempt to and did create
the impression that DeFord was a poor manager and was of
questionable technical competence when it transferred him to a job
with no supervisory responsibilities in which he was not allowed
to sign any of the work produced. But it is somewhat speculative
to say that after his vindication through reinstatement there
will be rumors and suspicions about him as a quality assurance
professional. The damage, if any, to DeFord's reputation
in the engineering field generally also contains a large element
of speculation. The only evidence submitted on this question
was DeFord's testimony that he had been recognized by various
professional engineering societies, chaired a committee of
one, and served on two other committees. There was no evidence,
for example, that he was asked to step down as committee chairman,
to resign from the committees or from any of the organizations.
No evidence was presented that the members of these
organizations and committees were even aware of DeFord's treatment
by TVA, although some word of mouth knowledge can be
inferred. In these circumstances, taking guidance from analogous
cases under 42 U.S.C. 1983 (see citations above), I think
it is appropriate to award $10,000 for mental pain and suffering
and damage to reputation.
III - BACK PAY
My order that DeFord be placed retroactively on administrative
leave until he is able to return to work was reversed by the
Court of Appeals because DeFord does not meet the criteria
for the granting of administrative leave in TVA regulations
(e.g., jury duty, military service). To grant DeFord administrative
leave, therefore, would go beyond a "make whole" remedy
by providing a benefit to which DeFord would not have been
entitled.
However, the court did say that "[i]n conjunction with
reinstatement, the compensation and damages provided for by
statute should allow the formulation of a complete and proper
remedy . . ." TVA's discriminatory action was the cause of
DeFord's mental distress and medical symptoms which have kept
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him out of work. While ordinarily an employee who is absent
due to illness must take sick leave, it would be unfair and
deprive DeFord of complete relief to require him to use such
leave for an absence due to illness caused by TVA's illegal
conduct. Therefore, TVA is ordered to pay DeFord back pay
from September 12, 1980 until the date of reinstatement under
(I) above without the expenditure of sick leave.
IV - ATTORNEY'S FEES
In accordance with the Sixth Circuit's decision that reasonable
attorney's fees covering all aspects of this case should
be awarded, and in light of my earlier order that the itemization
of fees, costs and expenses previously submitted by DeFord's
attorneys was, in other respects, reasonable, TVA should pay
DeFord's attorney's fees and expenses of $11,587.02.