DATE:  September 27, 1994
CASE NO. 92-TSC-5


IN THE MATTER OF

WILLIAM L. MARCUS,

          COMPLAINANT,

     v.

U.S. ENVIRONMENTAL PROTECTION AGENCY,

          RESPONDENT.


BEFORE:   THE SECRETARY OF LABOR


                              ORDER OF REMAND

     Complainant William L. Marcus brings the captioned complaint
of unlawful discrimination against his employer, the U.S.
Environmental Protection Agency (EPA), under the employee
protection provisions of the Toxic Substances Control Act, 15
U.S.C. § 2622 (1988); Safe Drinking Water Act, 42 U.S.C.
§ 300j-9(i) (1988); Clean Air Act, 42 U.S.C. § 7622
(1988); Solid Waste Disposal Act, 42 U.S.C. § 6971 (1988);
Water Pollution Control Act or Clean Water Act, 33 U.S.C. §
1367 (1988); Comprehensive Response, Compensation and Liability
Act, 42 U.S.C. § 9610 (1988); and the applicable regulations
which appear at 29 C.F.R. Part 24.
     In a Decision and Order issued on February 7, 1994, I
adopted the recommendation of the Administrative Law Judge that
Complainant should prevail on his complaint of unlawful
discrimination.  I also ordered Complainant reinstated to his
former position with back pay and damages.  Complainant now
requests findings on specific damages and losses.  Pursuant to an
Order issued on July 20, 1994, the parties have reported on the
status of this case with regard to certain issues which remain
unresolved, including whether Respondent may deduct Complainant's

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outside consulting fees from the back pay award as "interim
earnings" or whether these fees represent income from a
collateral source which may not be deducted.
     Deductible "interim earnings" are earnings that a
complainant could not have earned if he had not suffered unlawful
discrimination.  Here, Complainant alleges that he would have
earned consulting fees in addition to earning his full salary had
he not been discharged.  As demonstrated in Schlei & Grossman's
Employment Discrimination Law (2d ed. Supp. 1989) at 537 n.71,
the distinction becomes apparent upon comparing, for example,
Whatley v. Skaggs Cos., 707 F.2d 1129 (10th Cir.),
cert. denied, 464 U.S. 938 (1983), where the prior
position would have precluded moonlighting, and Nash v. City
of Houston Civic Center, 805 F. Supp. 1030, aff'd in part
and rev'd in part, 800 F.2d 491 (5th Cir 1986), where the
discharged employee's earnings from running his own business were
adjudged interim earnings to be deducted from the back pay award,
with Hawks v. Ingersoll Johnson Steel Co., 38 Fair Empl.
Prac. Cas. (BNA) 93 (S.D. Ind. 1984), where the earnings from a
part-time job held before and after the employee's discharge were
not deducted from his back pay award because the income was
received regardless of the employee's employment status with the
company, Lilly v. City of Beckley, W. Va., 615 F. Supp.
137 (S.D. W. Va. 1985), aff'd, 797 F.2d 191 (4th Cir.
1986), where a job applicant's earnings from secondary employment
were not offset from the back pay award because he established
that the earnings could have been maintained had he been hired,
and Behlar v. Smith, 719 F.2d 950 (8th Cir. 1983),
cert. denied, 466 U.S. 958 (1984), where monies earned by
female faculty members during the summer and in evenings during
the school term were not offset against their back pay awards. 
     Resolution of this issue appears to require factual findings
appropriately made by the ALJ who is authorized to hear testimony
and otherwise compile a record.  Assuming Complainant would have
earned consulting fees in the absence of Respondent's
retaliation, question arises as to whether he would have used
annual leave in this regard and whether any adjustment is
appropriate in restoring that benefit.
     Accordingly, this case IS REMANDED to the ALJ for purposes
of addressing the above issues.  The ALJ additionally is directed
to address the remaining outstanding damages and attorney fee
issues.
     SO ORDERED.
                              ROBERT B. REICH
                              Secretary of Labor

Washington, D.C.