The ARB noted that I did not explicitly state that the burden of proof upon respondent to rebut an inference of retaliatory intent is higher than mere preponderance of the evidence, namely, the inference must be rebutted by "clear and convincing evidence." DO 16.

   In my prior decision I found that all five of the elements necessary to raise the inference of retaliatory intent were satisfied. Nothing in the ARB decision or in the second hearing suggests that these findings were erroneous. On the contrary, the following evidence strengthens the findings.

   1. James W. Simpkin testified that Bart Kutt had told Simpkin at the very beginning of his employment by respondents, Mattingly Testing Services, Inc. (MTS) and the Mattinglys, that his first job was to find a way to get rid of complainant; he was told to find "some bullshit way" to fire complainant. TR2 28. The focus was on who called the NRC rather than how to fix the safety problems. TR2 28-30. Bart Kutt flatly denied this. TR2 267. Even though Simpkin had no authority over complainant and did not work with him, he was hired to help MTS survive the NRC investigation, and was likely to be privy to the spirit of the Mattinglys and Bart Kutt during the investigation. Simpkin apparently was also a competitor of MTS, but I doubt that this factor would lead him to perury. This testimony bears only indirectly on the issue of whether Timmons would have been fired for the Roscoe Steel incident even if he had not engaged in protected activity, but, to the extent credited, makes the inference of retaliatory intent even greater than I found in my 1995 decision.

   2. The two NRC investigatory reports, which were rejected in the 1995 hearing and which were admitted in the 1996 hearing, found deliberate violations of NRC regulations. In accordance with the ARB's directive, I find that such deliberate violations of NRC regulations adds weight to my previous inference of retaliatory intent.

   The main focus on remand is whether MTS has produced clear and convincing evidence that Mike Timmons would have been fired for the Roscoe Steel incident even without having engaged in protected activities. If, as complainant contends, the preponderance of the evidence shows that he was "set up" for the Roscoe Steel incident, either by Mr. Mattingly or by Mr. Kutt, complainant must win. If, as MTS contends, clear and convincing evidence shows that complainant "pencil whipped" the Roscoe Steel inspection, i.e., if he did not conduct it at all but only filled in the paper work showing an inspection, complainant must lose.

   The evidence that Timmons "pencil whipped" the inspection is as follows:

   Buck Thomas, a current employee of MTS, testified that at a meeting with him [Thomas] and Sam Bruno in November or December 1995 (after the first hearing in this case and the unemployment insurance hearing referred to below) Timmons was demonstrating a security system he was trying to sell, and in the course of conversation "He [Timmons] said he deserved to be fired for pencil whipping the inspection. He just wanted to go on vacation, wanted to get out of there." TR2 278-279. Timmons denied this. TR2 199. Sam Bruno remembers no such statement by Timmons, and would not have hired him if he had he said that. TR2 244-245. The transcript of the unemployment insurance hearing held on September 14, 1995 (RX 5A)(after the first hearing on August 9, 1995, but before my decision of October 20, 1995, cf. TR2 202-205) quotes Timmons saying, "I might have missed some bad things but I have witnessed ... some of these other inspectors. ... I really tried to give this job a chance for awhile until I started getting angry and seeing the stuff that was listened to and feeling that I was just a number that was not listened to." RX 5A, p. 25. At the hearing Timmons admitted to being angry at the time. TR2 206. Timmons's treating psychologist, Stephen C. Wagner, also was aware of this anger. Wagner deposition (Wagner dep.) 38. Respondent contends that this anger caused Timmons to ignore his employer's interests and to "pencil whip" the inspection.

   At the 1996 hearing Timmons testified that on reflection he did not make a mistake at the Roscoe Steel inspection, that he was "set up." TR2 194, 196. Nobody told him that the steel was not A-36 (see ALJ exhibit 1 from 1995 hearing) (TR2 118-119) so that he assumed it was a softer steel than the W-50 steel it actually was. TR2 137, 142. For a higher carbon steel "You have to have a stronger magnetic field to get adequate indications." TR2 140. He did not set up a stronger field because he was not informed it was not A-36. TR2 140. He was not the usual MTS employee who would do the Roscoe Steel inspections; that Bart Kutt and even Sam Bruno were more used to Roscoe than he was; that Kutt insisted on that day that Timmons do the inspection. TR2 114-115, 217. That the beams to be tested were closer together than would have been desirable. TR2 120. It was kind of tough to get between them easily and check them out. TR2 132. He "couldn't get" one of Roscoe's people to help move them. TR2 132. One of the beams was too warm to keep his hand on and two others were 'fairly warm." TR2 121. "It [the coolest] was probably a little above room temperature, but it was close enough to ambient to start on it." TR2 121-122. He did not have a blueprint of the girders at the time of the test. TR2 123. The lighting was "probably 75 foot candles. You need 100 foot candles to do a proper inspection." TR2 133. "I had no light. You should be provided with a light to illuminate that. And you should have a light meter, which we never did. We never had a light meter or a pie gauge." TR2 133-134. Mr. Mattingly testified that when Timmons asked for a pie gauge, apparently on some previous occasion, it was immediately sent. TR2 305.

   Timmons did not mention any of these circumstances to Mr. Solheim when he basically apologized to him shortly after being terminated. TR I 205. They were all known by the time of the first hearing (except perhaps the kind of steel it was) where Timmons was represented by counsel, but none of them were mentioned then. When asked about this omission

he said "it's just one of those things that you overlook, I guess." TR2 216.

   At the 1996 hearing Mr. Solheim testified: There is a tag, a sticker 3" x 12", on each girder which specifies the grade of steel, among other things. TR 143, 148, 150. It is possible that the beams that were inside were not tagged, but the beams outside the door are always tagged. TR 157-158. For the grade of steel involved in the Roscoe Steel incident, "visual inspection on all steels may begin immediately after the completed weld has cooled to ambient temperature." TR2 152. At least four of the five beams were at ambient temperature when Timmons came, and the fifth was expected to be at that temperature by the time he got to inspecting it. TR2 154, 166. Mr. Solheim repeated his testimony from the first hearing that Mr. Timmons told him all five beams inspected were fine, and that the following Monday Mr. Kutt showed him defective welds, which Solheim could see visually. TR2 155. However, on cross-examination Mr. Solheim testified that he visually inspected the beams on Friday before Timmons inspected them and did not see any defects. TR2 160. "I just don't know that these were large enough to see." TR2 164. If light is needed inspectors use ordinary flashlights. 'And if someone needs a flashlight and you don't have one, shame on them." TR2 170. "If someone wanted to use my flashlight, I would loan it to them. But I don't supply the NDT people with their equipment that they need for testing." TR2 171. If the inspector wanted to have girders moved because they were too close for proper inspection and Mr. Solheim was not around, some other foreman would be there to help. "Mhere's no way that we would refuse access[.]" TR2 178.

   I infer from Mr. Solheim's testimony that he or his men would have been willing to help if asked, but that such requests were not encouraged. From the testimony that Mr. Solheim did not see any defects on the morning he looked at the girders before Timmons inspected them, I infer that the defects were not as obvious as they proved to be the following Monday.

   Upon reflecting on all the evidence from the first hearing and the second hearing, I do not find the evidence clear and convincing that Timmons's missing the defects that Kutt found later was such egregious conduct that it would have resulted in his discharge regardless of his protected activity. In my 1995 decision I wrote:

There are two ways here to raise the inference that the protected conduct was the likely reason for the firing. One is that Timmons justifiably felt nervous because he was being scrutinized for mistakes by Kutt, that Kutt did the scrutinizing because of the protected activity, and that the nervousness was the cause of doing the Roscoe Steel inspection badly. Although Timmons raised this scenario, he admitted, "I should have been able to concentrate more on the inspection at hand." TR[l] 113. Further, it is hard to distinguish Kutt's feelings about Timmons because of the NRC investigation from his feelings arising out of Timmons's being at the office with a leg injury and not earning billable time for the company. Nevertheless, this scenario supports the finding that the protected activity played some role, if a minor one, in MTS's ultimate adverse action.

The second is that the Mattinglys and Kutt were angry with Timmons for his protected activity and wanted to retaliate against him for this reason. This seems more probable and more usual.

    I now think that the first scenario is as probable as the second. Timmons was nervous at the time of the Roscoe Steel inspection, in part because Kutt was monitoring him very closely. I think he made mistakes, but they were honest ones. His failure to explain himself to Susan Mattingly on the day of his firing can be explained by his anger as easily as by his feeling of guilt. His failure to explain played a part in his being fired. TR1 69.

   Mr. Simpkin testified that if he were faced with the situation of an inspector missing 32 indications he would not summarily discharge such an inspector, but would investigate the circumstances of the situation, such as the powder used, calibrations of instruments, etc. TR2 107. This sounds like common sense to me; it was not done in complainant's case and thus detracts from MTS's assertion of impartiality.

   The burden of showing lack of retaliatory intent by clear and convincing evidence is made heavier than it was in my mind in the first hearing by the ARB's directive that I consider the deliberate violations of NRC regulations as evidence of retaliatory intent. Furthermore, evidence of disparate treatment was substantial in the second hearing. Mr. Simpkin testified to defects at Silverwood that he found that must have existed for more than a year on structures that MTS had inspected previously that did not result in discipline. TR2 37-39, 110. Even though all the circumstances there were not the same as at the Roscoe Steel incident, it does show a greater tolerance for mistakes by MTS than it showed in complainant's case.

   In the 1996 hearing Timmons testified there were no stickers on the girders. TR2 190, 218. Even though Mr. Solheim testified that there were, I do not find that Timmons's testimony proves he could not have inspected the girders. The hearing was one-and-one-half years after the event, and Timmons could have forgotten what he observed at the time of the inspection.

   I conclude that respondent has not shown by clear and convincing evidence that it would have fired complainant in the absence of his conduct with respect to the NRC.

   Relief

   Where a violation of the Act has been found the Secretary may order (1) affirmative action to abate the violation, (2) reinstatement together with the compensation (including back pay) terms, conditions, and privileges of his employment, (3) compensatory damages to the complainant, (4) costs and expenses, including attorney's fees, reasonably incurred in bringing the complaint. Thomas v. Arizona Public Service Co., 89-ERA-19 (Sec'y Sept. 17, 1993), pp. 13-14, DOL Decs. v. 7, No. 5, p. 64, 71.

   In this case there is no indication that the violation is a continuing one, and complainant has not suggested an abatement remedy. Reinstatement is impracticable in view of the small size of MTS's operation and the hostility between Timmons and the Mattinglys.

   Back Pay - Front Pay

    Back pay is compensation for lost earnings to the time of trial. Front pay is compensation for estimated lost earnings thereafter.

   Timmons was paid $10 per hour at MTS. TRI 22-23. Timmons was unemployed between April 17, 1995 and August 9, 1995, despite efforts to find work. TR1 65. This entitles him to 17 weeks of pay at $400 per week for a total of $6,800. From some time after his termination at MTS until February 1996 Timmons bought a small business selling security systems. He made no money, but I infer he was unavailable for work. TR2 209-211. From February 1996 he made $7 per hour for one month at Agri Systems. Thereafter he made $8 per hour (TR2 222) until July 29, 1996, when he began to work for Sam Bruno at $10 per hour, except one week where he made only $260. That continued until approximately September 15, 1996, when he returned to Agri Systems at $8 per hour. TR2 211-213.

   These facts result in the following calculations:

Feb. 1996 - Mar 1996, 4 weeks x $280 per week ($7 x 40 hrs) =        ,120
Mar 1996 - Jul 29, 1996, 21 weeks x $320 per week ($8 x 40 hrs) =     6,720
Jul 29, 1996 - Sep 15, 1996, 6 weeks x $400 per week
                                      ($ 10 x 40 hrs)=               $2,400
One week at $260                                                        260
                                                                    _______
Total earnings                                                      $10,500

   Had he remained working at MTS during the same period he would have earned $400 per week. During the period February 1996 to September 15, 1996 this would have amounted to $12,800 (32 weeks x $400). Timmons is therefore entitled to $2,300 in back pay for this period. ($12,800 - $10,500 = $2,300.)

   From September 16, 1996 forward he earned and is earning $320 per week, which entitles him to $80 per week front pay. I find that the laws of Montana, which cap compensatory damages for lost pay at 4 years (TR2 324) set a reasonable limit that the Secretary (ARB) should adopt in this case. Four years from April 17, 1995 is April 16, 1999. From September 16, 1996 to April 16, 1999 is 135 weeks. This entitles complainant to $10,800 in front pay. ($80 x 135 weeks.)

   Compensatory damages for emotional distress

   Stephen C. Wagner, Ph.D. testified by post-hearing deposition (Wagner dep.). Respondent objected to this testimony on the authority of Daubert v. Merrell Dow Pharmaceutical, Inc., 509 US 579, 113 SCt 2786, 125 LEd 2d 469 (1993). 1 find nothing in that case that would restrict a licensed psychologist and psychotherapist from testifying to matters within his expertise, just as any-licensed physician may do. On the contrary, the case broadened the test for admissibility from the narrow one that had been used since Frey v. United States, 54 App. D.C. 46, 283 F. 1013 (1923). Respondent's objection that Dr.

Wagner was not a specialist in forensic psychology (brief, p. 16) is misplaced. Whether or not a psychotherapist testifies frequently has nothing to do with his skill as a therapist or evaluator of emotional conditions.

   Dr. Wagner first saw Timmons in July of 1995. Wagner dep. 8. When he (Timmons) came in he was very depressed, almost suicidal. Wagner dep. 10. He felt he was fired at the first opportunity MTS had to fire him because he had reported to the NRC. Wagner dep. 11. The F scale on the MMPI test, which tests the patient's attempt to appear worse than he is, was elevated in Timmons's scale, "but that is not uncommon among individuals who are in a lot of psychological distress." Wagner dep. 18. It indicates that he was exaggerating, not faking or malingering. Wagner dep. 47, 57. Dr. Wagner thought Timmons's test results were valid. Wagner dep. 19. Mr. Timmons's perception of his discharge by MTS was a substantial factor in causing his reactive depression. Wagner dep. 22-23. Timmons saw Dr. Wagner 5 times for psychotherapy between July 2, 1995 [perhaps July 29-- see Wagner dep. 34 or July 28, see CX 2-A from 10/1/96 hearing] and January 22, 1996, for a total charge of $450. Wagner dep. Exhibit 1. Dr. Wagner referred Timmons to Dr. Gunderson for medication, which was effective in that he was functioning much better in about two weeks. Wagner dep. 24-25. Dr. Wagner characterized Timmons's depression as "moderate" as that term is used in the DSM-IV. Wagner dep. 30. Dr. Wagner thought more than the five sessions he had would be needed to get Timmons over the depression. He estimated about 10 to 12 sessions over a four month period (Wagner dep. 33-34) which would be 5 to 7 more than he had.

   On this evidence I find complainant entitled to 7 more sessions with Dr. Wagner, at $90 per session, for $630, in addition to the $450 that he is entitled to be reimbursed, for a total of ,080.

   Dr. Wagner also testified to complainant's depression, varying between severe and mild to moderate. Complainant's brief referred to an article in 99 ALR Fed 501, which outlines awards for emotional distress for wrongful employment practices. The article shows that such awards vary greatly; none of the cases cited there involved decisions by the Secretary of Labor. The Secretary awarded ,000 for "humiliation" to Sara Thomas in Thomas v. Arizona Public Service Company, supra. The Secretary also cites various other awards for emotional distress. Since I was the trial judge in the Thomas case, I am able to compare the relative severity of the conditions evaluated by the Secretary. I believe an award to Timmons of $5,000 for emotional distress is consistent with the Secretary's prior awards.

   To summarize: $6,800 + 2,300 + 10,800 + 1,080 + 5,000 = $25,980.

   I conclude that complainant is entitled to $25,980 in compensatory damages. He is also entitled to attorney's fees and costs. Mr. Mackey is ordered to prepare a fee petition and serve it upon Mr. Lehman within 15 days of this Recommended Decision and Order.

Within 15 days thereafter the parties should attempt to agree upon an amount to be awarded as fees and costs. If they agree, Mr. Lehman shall notify the undersigned of such agreement in writing. If they do not agree, Mr. Mackey shall file his fee petition with the undersigned no later than on April 10, 1997 and Mr. Lehman shall file respondent's objections thereto at the same time. I shall thereafter issue a supplemental recommended decision and order respecting attorney's fees and costs.

   Respondent shall pay complainant $25,980 and shall pay complainant's counsel fees and costs to be determined as specified above.

       Thomas Schneider
       Administrative Law Judge

Date: March 11, 1997
San Francisco, California

NOTICE: This Recommended Decision and Order and the administrative file in the matter will be forwarded for review by the Secretary of Labor, Room S-4309, Frances Perkins Building, 200 Constitution Avenue, N.W., Washington, D.C. 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).