Date: April 27, 1995
Case No. 89-STA-7
In the Matter of:
THOMAS E. MOYER
Complainant,
v.
YELLOW FREIGHT SYSTEM, INC.
Respondent.
APPEARANCES:
Richard G. Ross, Esq.
For the Complainant
Jeffrey L. Madoff, Esq.
For the Respondent
Before: GEORGE P. MORIN
Administrative Law Judge
SECOND RECOMMENDED SUPPLEMENTAL
DECISION AND ORDER ON REMAND
This case arises under Section 405 of the Surface
Transportation Assistance Act of 1982, 49 U.S.C. §§2305
et seq., hereinafter, "the Act." The Act affords
protection to covered employees from discrimination or discharge
for engaging in certain protected activities.
This proceeding was initiated when a complaint was filed
with the Secretary of Labor on November 14, 1988, by Complainant,
Thomas E. Moyer, alleging that Respondent, Yellow Freight
Systems, Inc., had illegally discriminated against him in
violation of §405(b) of the Act. Specifically, Complainant
asserted that Respondent discharged him in reprisal for his
refusing to operate a commercial vehicle due to illness.
On May 18, 1989, a formal administrative hearing was held
before District Chief Administrative Law Judge E. Earl Thomas in
Tampa, Florida. That hearing focused on Complainant's actions
pursuant to §405(b). However, testimony also surfaced
regarding
[PAGE 2]
Complainant's involvement in the grievance proceeding of a co-
worker, Robert E. Lee. According to his Recommended Decision and
Order issued August 1, 1989, Judge Thomas found no §405(b)
violation, as Complainant failed to establish his engagement in
"protected activity." With regard to Complainant's involvement
in Lee's grievance proceeding, Judge Thomas found that no
violation of §405(a) had either been alleged or proven.
In a Final Decision and Order of Remand issued November
21, 1989, the Secretary of Labor sustained Judge Thomas' finding
with regard to §405(b) but reversed his determination that
there had been no violation of §405(a). The Secretary found
sufficient evidence to warrant a finding of an illegal discharge
in violation of §405(a). Accordingly, she ordered
Respondent to reinstate Complainant immediately and remanded the
case to Judge Thomas for determination of additional appropriate
relief.
On December 22, 1989, Respondent appealed the Secretary's
Order to the United States Court of Appeals for the Sixth
Circuit. While that appeal was pending before the Sixth Circuit,
Judge Thomas issued a Recommended Supplemental Decision and Order
on Damages, dated June 18, 1990, awarding Complainant the
following additional damages: $42,710.04 in back pay; $3,502.54
in interest; $6,584.02 for medical expenses; ,095.36 for
litigation costs; $15.64 for costs of seeking alternative
employment; and the right to have contributions made on his
behalf to the appropriate health, welfare and pension funds for
the period since his discharge.
On September 27, 1990, the Secretary adopted Judge Thomas'
Recommended Order on Damages in its entirety with the exception
of the finding as to medical expenses. The Secretary agreed with
Respondent that ordering Respondent to reimburse Complainant for
his medical expenses, as well as to pay health and welfare fund
premiums for the period in which he incurred his medical
expenses, was duplicative. Accordingly, the Secretary only
required Respondent to reimburse Complainant for medical expenses
incurred and to pay sufficient monies into Complainant's health
and welfare fund to insure immediate coverage upon reinstatement.
In addition, the Secretary slightly modified Judge Thomas' Order
to allow continuing accrual of back pay with interest until the
date of reinstatement and to extend Respondent's liability for
additionally incurred attorney's fees.
Subsequent to the issuance of the Secretary's Final Order on
November 21, 1989, the Sixth Circuit found that Respondent had
not been given prior notice by either Complainant or the
[PAGE 3]
Secretary of a §405(a) violation. The Sixth Circuit held
that Respondent had not been given the opportunity to respond or
defend the alleged §405(a) violation as guaranteed under due
process. Accordingly, the case was remanded to the Department of
Labor to provide a hearing regarding the §405(a) violation.
On January 26, 1993, Judge Thomas conducted a supplemental
hearing devoted to the disputed §405(a) violation. In a
Recommended Decision and Order on Remand issued May 24, 1993,
Judge Thomas Found no §405(a) violation and recommended that
the complaint be dismissed.
On October 21, 1993, Secretary of Labor Robert Reich issued
a Decision and Order on Remand, reversing Judge Thomas' finding
of no §405(a) violation and ordering immediate
reinstatement. Additionally Secretary Reich remanded the case to
Judge Thomas for determination of additional appropriate relief.
Due to his impending retirement, Judge Thomas was
unavailable to conduct a hearing on additional appropriate
relief. Accordingly, the case was reassigned to the undersigned
and a hearing was held on October 3 through October 5, 1994, in
Cleveland, Ohio. Complainant's exhibits 1 through 6,
Respondent's exhibits 1 through 126, and Joint exhibits 1 through
6 were introduced and received in evidence. [1]
THE PARTIES' BASIC CONTENTIONS ON ADDITIONAL DAMAGESComplainant's Position
Despite the court's repeated attempts to secure a brief from
Complainant, [2] the court did not receive a brief from either
Complainant or his counsel regarding Complainant's assessment of
damages Complainant expected to be awarded in this case.
However, Complainant contended at the hearing, that he is
entitled to reinstatement with full benefits, full back pay, full
payment for vacation, sick pay, holidays, birthdays,
reimbursement for all medical expenses, and the costs of attorney
fees and other litigation related expenses. (TR 5-10)
Complainant acknowledged that he had received earnings through
interim employment, in the total amount of $21,509.16 since March
1990. With respect to the appropriate amount of back pay,
Complainant has stipulated to the comparative earnings of three
individuals with similar job titles and seniority dates as those
of Complainant. (TR 7)
[PAGE 4]
Respondent's Position
Respondent's starting premise is that despite his obligation
to mitigate damages, Complainant made only minimal efforts to
obtain meaningful employment in the occupation for which he was
fully qualified, by training and experience, that of an over-the-
road (OTR) tractor-trailer driver. During the time Complainant
would have been looking for a position paying comparable salary
and fringe benefits, the industry was experiencing a severe
shortage of OTR drivers. [3] Respondent additionally contends
that Complainant either took jobs with low-paying companies
employing temporary drivers and offering no benefits, or else
left the one or two jobs comparable to the one he had with Yellow
either for an inadequate reason or for no reason at all.
Respondent's ultimate conclusion with regard to additional
damages is that because of Complainant's utter failure to
mitigate damages, it is not liable for any additional
damages. However, Respondent submits, in the event the court
finds any liability for payment of additional damages, Respondent
has proposed three alternative methods for computing damages
accrued between the date of the last damages hearing in 1990 and
the present.
In the first alternative, Respondent has computed gross back
pay from August 5, 1990 to January 30, 1992, to be $76,349.00.
After applying an offset of $53,059.00 for money earned in
alternative employment and money Respondent claims Complainant
should have earned from other employers if he had not
unjustifiably quit their employ, Respondent arrives at the back
pay amount of $23,290.00. Under this method of calculating,
Respondent allows for no back pay reimbursement for the period
January 30, 1992 to the present because on January 30, 1992,
Complainant, believing himself totally disabled, applied for
Social Security disability benefits. The gross back pay figure
($76,349.00) is based on stipulated average monthly comparable
earnings of employees with comparable seniority, as detailed in
revised JX-1. Offsets from the gross back pay figure from the
period August 5, 1990 to January 30, 1992, include $8,930.00,
which Complainant earned between August 5, 1990 and December 31,
1990 while working for Transportation Unlimited (a leasing
company); ,577.00 earned in a two-week period falling between
the dates of January 1, 1991 and March 30, 1991, while employed
by Superior Fleet; $3,513.00 and $2,922.00 earned between
January 1, 1991 and April 30, 1991 while employed by
Transportation Unlimited and P&M Trucking, respectively; and
$36,117.00 for the remaining time between January 15, 1991 and
January 30, 1992, when not actually working for either P&M or
Transportation Unlimited, at the Superior Fleet rate of $788.00
[PAGE 5]
per week. [4]
The second alternative assumes Complainant was employed
and/or employable for a portion of 1992 beyond January 30th.
Again, using comparable earnings from February 23, 1992 to
June 25, 1992, [5] Complainant could have earned $13,132.00 for
that period in his regular job with Yellow Freight. This amount
is offset by the Superior Fleet rate for 18 weeks (18 x $788.00 =
$14,184.00). Respondent does not believe it is responsible for
any payments whatsoever for the period January 30 to February 22,
1992, while Complainant was recuperating from a January 30, 1992
surgical procedure performed to alleviate his hidradenitis
condition. Thus, the first alternative back pay final figure of
$23,290.00 is increased by the difference between Complainant's
baseline back pay rate and the Superior Fleet rate of $14,184.00,
or $3,948.00.
Alternative three assumes payment of Complainant's baseline
Yellow Freight wage rate from August 5, 1990 until September 19,
1992, the date of the letter announcing SSA's determination of
Complainant's entitlement to benefits, which the parties
stipulated (using earnings of the three comparable employees) to
be $117,052.00. From this amount, Respondent subtracted total
offsets to arrive at a net back pay of $26,169.00.
With regard to medical expenses, Respondent argues that
Complainant unjustifiably left interim employment just prior to
qualifying for medical coverage. If the court awards medical
reimbursement, Respondent asserts that said reimbursement should
not cover the two surgeries for hidradenitis, which were covered
and paid for by welfare, or for any expenses arising after
December 1993, as Complainant's expenses were thereafter covered
by Respondent's medical plan.
As for Complainant's request for attorney's fees, Respondent
maintains that Complainant's claim is excessive and should be
reduced to cover only reasonable attorney's fees. Specifically,
Respondent maintains that it is not responsible for the
attorney's fee of Lincoln R. Thorman, Esq., as this fee covers
the same time period as fees claimed by Chattman, Sutula, et al.
(Respondent's Brief, pp. 80-82)
FINDINGS OF FACT
Prior to his employment with Respondent, Complainant worked
in the trucking industry for almost ten years. Complainant began
his period of employment with Respondent as an OTR driver
[PAGE 6]
beginning on September 9, 1978 and remained so employed until his
illegal discharge on November 9, 1988. [6] On the date of his
discharge, Complainant was covered by a collective bargaining
agreement and a health, welfare, and union pension fund which
determined complainant's medical, vacation, and other benefits.
Motor carriers whose employees are represented by the Teamsters
Union are signatories to the National Master Freight Agreement
(NMFA, hereinafter), in which pay rates, benefits and conditions
of employment are set out.
After his discharge by Respondent, Complainant worked for a
number of other trucking companies, both in Florida and Ohio.
Explaining that he could not successfully secure a trucking job
in Ohio due to his termination by Yellow Freight, Complainant
relocated in December 1988 to Clearwater, Florida. Shortly after
his relocation, Complainant began his job search by applying for
a chauffeur's license and interviewing with various Florida
trucking firms.
In March 1989, Complainant worked as a driving instructor
for the Jorgenson Truck Driving School, earning $9.00 an hour.
Complainant worked for Jorgenson for nine days until his
employment was terminated by mutual agreement. While in
Jorgenson's employ, Complainant earned a total of $720.00. (RX
43)
In May 1989, Complainant worked as a lease driver for
Universal Select, Inc., in Tampa, Florida. Complainant worked
for Universal for approximately two weeks and earned a total of
$942.00. (RX 45) At the March 1990 hearing, Complainant
testified that he left Universal in order to return to Ohio in
anticipation of his reinstatement with Respondent pending the
court's decision.
A month after returning to Cleveland, in June or July 1989
(TR 62), Complainant secured employment as a lease driver with
Transportation Unlimited where he worked sporadically during the
next couple of months. He earned a total of ,512.05. (RX 46)
Complainant left Transportation Unlimited to pursue more steady
work with Continental Baking Company, but only worked there from
July 16 through August 5, 1989. He was paid at an hourly rate of
$9.00, and earned a total of $904.04. (RX 45) His employment
with Continental Baking ended when he was discharged, according
to Complainant, because of his inability to jack-knife a 45-foot
trailer, at an angle, into a loading dock. [7] At the 1990
damages hearing, Complainant had testified that his discharge
resulted
[PAGE 7]
from a lack of reliable transportation, medication to control his
serious physical condition (hidradenitis), and funds to buy
needed eyeglasses. [8]
In September 1989, Complainant worked one day for St.
Johnsbury Trucking Company, Inc., as a casual driver earning
$114.55. In October 1989, Complainant sought employment with
Cleveland Express, a division of Branch International Service, as
a casual driver. After working for approximately 1-1/2 to 2
weeks, Complainant left Cleveland Express. Complainant was
concerned as he needed antibiotics for his hidradenitis.
Complainant earned $739.00 for his work. (RX 44)
In the following month, November 1989, Complainant began
working for National Transportation Company, a nationwide
trucking company based in Omaha, Nebraska. [9] On November 30,
1989, while in that company's employ, Complainant sustained an
injury to his knee and was unable to continue working. The
injury occurred at a place called Dry Ridge, Kentucky. According
to Complainant's testimony, he was disabled as a result of this
injury from November 30, 1989 to March 23, 1990. Complainant
earned $509.38 while working for National Transportation. As a
result of this injury, Complainant filed a workers' compensation
claim with the Kentucky Workers' Compensation Board. In March
1992, the parties settled the claim for temporary total
disability for the lump sum amount of $14,026.53, out of which
Complainant's attorney received $2,200.00. (TR 359, 365; RX 3,
pp. 106-107, 115)
Following his work-related injury with National
Transportation in December 1989, Complainant sought employment
with Premium Enterprises, Inc., an office supply delivery
company, as a dock worker-driver. However, shortly after
entering on employment with that company, Premium terminated
Complainant on December 19, 1989. (R-RESP 68) [10] At the 1990
damages hearing, Complainant testified that his termination was
caused, at least in part, by his medical conditions which were
not covered by any medical insurance. At the 1994 damages
hearing, Complainant didn't allude to the termination but
testified that he left Premium Enterprises to obtain a higher
paying job. (TR 204) While working for Premium Enterprises,
Inc., Complainant earned a total of $328.00. (RX 45)
After leaving Premium Enterprises, Inc., Complainant worked
briefly, in late December 1989, for M&K Leasing, earning a total
[PAGE 8]
of $420.00 (R-RESP 44) [11] During 1989, following his
discharge from Continental Baking, Complainant also received
unemployment compensation in the amount of $3,852.00 from the
Ohio Bureau of Employment Services. (R-RESP 46)
In January 1990, Complainant underwent surgery followed by a
brief hospitalization to alleviate his chronic hidradenitis
condition (TR 366) Once his period of disability ended in late
March 1990 (presumably for the knee injury sustained in November
1989), Complainant sought employment through personal contacts
and newspaper advertisements. (TR 449) Although he was unable to
remember the precise dates of his employment, Complainant
testified that he worked for Transportation Unlimited during 1990
for approximately 25 weeks, earning a total of $8,929.97. On
Complainant's U.S. Individual Income Tax Return for the year
1990, Form 1040A, in evidence as R-RESP 47, the figure entered on
Line 7, for wages, salaries, tips, etc., is $8,930.00. (TR 217,
RX 48) Income received for the six days he worked for East Coast
Trucking in July 1990 was not reported on his Federal income tax
return. (TR 245)
In January 1991, Complainant worked for Superior Fleet
Services for approximately two weeks, earning a total of
,576.80. (TR 218; R-RESP 36, 51) (However, at TR 236, when he
was asked how long he worked for that company, Complainant,
referring to Superior Fleet Services, responded:
"[a]pproximately four months.) Complainant also worked for
Transportation Unlimited in 1991, earning therefrom an additional
$2,922.37. (TR 217; R-RESP 50)
Complainant left Superior and began working for P&M
Trucking, Inc. (Complainant consistently referred to this carrier
as "PAM" at the October 1994 hearing) in February 1991, earning
$3,512.99. (R-RESP 51) According to Complainant's testimony, he
left P&M to seek employment offering a greater salary and more
comprehensive benefits. (TR 229-230) However, there is no
evidence to suggest that Complainant worked for any other
companies in 1991. His 1991 1040EZ, Income Tax Return for single
filers with no dependents, reflects total wages, salaries and
tips of $8,012.16, an amount identical to the sum of his earnings
reported on W-2's received from Superior, P&M, and Transportation
Unlimited.
In January 1992, Complainant applied for Social Security
disability benefits. (R-RESP 3, p. 47, R-RESP 31, p. 61) He
testified at one point that he got the idea to apply for Social
Security Disability Benefits after reading some pamphlets in a
[PAGE 9]
doctor's office (TR 92), but later on, that is was after seeing
an ad on TV. (TR 351) On direct examination, he testified that
his reasons for applying were that he had no hospitalization, he
couldn't find a job, his car had broken down and wouldn't run, he
was $100,000.00 in debt and people he owed money to were
demanding payment, he was "in kind of bad shape", and he had
exposed nerves in his teeth. (TR 90)
On his application for Disability Insurance Benefits (R-RESP
63) dated January 18, 1992, he stated he became unable to work
because of his disabling condition on November 2, 1988.
(Coincidentally, on November 9, 1988, after Respondent reviewed
his overall work record, Complainant was terminated.) On the
same form, which he signed, Complainant indicated his agreement
to notify SSA if his medical condition improves so that he would
be able to work, even though he had not yet returned to work, or
if he should go to work whether as an employee or a self-employer
person.
Also in January 1992, Complainant filled out a Disability
Report in his own handwriting. In this report, Complainant
stated that his disabling condition is "Hydradenitis (sic) -
Groin - Incurable - Leg - Knee - Ankle - Back - Neck," a
condition which first began to bother him, he said, on August 3,
1983. He indicated that hidradenitis is incurable and that he
will have to take antibiotics for it for the rest of his life.
The problem, he stated, is very painful and causes severe mental
problems. (R-RESP 61) Following the evaluations previously
referred to by Dr. Mukherjee on June 15, 1992 and Dr. Rees on
June 25, 1992, and after considering hospital and treatment
records from as far back as December 1979, SSA, on August 14,
1992, determined that Complainant was disabled. Anxiety-related
disorder was given as the primary diagnosis, disorders of the
male genital organs as the secondary diagnosis. June 25, 1992,
the date of Dr. Rees' examination and report, was given as the
onset date of disability. (R-RESP 62)
On February 3, 1992, after filing his SSA Disability
Insurance Benefits claim, Complainant underwent a second surgery
to correct his hidradenitis and was hospitalized until
February 4, 1992. (R-RESP 3, p. 108) As a result of the surgery,
complainant was unable to work for three weeks. (TR 97)
At the 1994 damages hearing, Complainant testified that his
hidradenitis became further aggravated, as he did not have access
to his required medication. Complainant explained that his
condition is controllable with the proper medication and regular
[PAGE 10]
doctor visits. Regular medical treatment is necessary, as
Complainant's dosages and medications frequently change according
to his aggravation level at any given time. (TR 96)
After his recovery from the second surgery, Complainant
again relocated to Florida. Acting upon the advice of his
friend, Robert E. Lee, who assured him that he could arrange an
interview with Southern Freightways, Complainant moved to Daytona
Beach, Florida. (TR 251) In March 1992, complainant worked as an
OTR driver for Southern Freightways. (RX 3, p. 32) An earnings
statement from Southern Freightways, accompanying his paycheck
dated April 23, 1992, indicates his year-to-date earnings with
that company were ,932.48. (R-RESP 52) According to his 1992
city and state tax returns (R-RESP 58), his total wages, salary
and tips for the year was $4,147.03, but neither of these returns
had a W-2 attached so the source of those earnings in excess of
,932.48, the amount indicated on the Southern Freightways
earnings statement, are unknown. Possibly some of the
unaccounted $2,214.55 was in additional earnings from Southern
Freightways, as R-RESP 52 does not indicate that this was
Complainant's final check from that motor carrier. Some of that
money undoubtedly was earned from brief periods of employment
Complainant testified he had in August or September 1992, after
his return from Florida, with Transportation Unlimited and Triton
Trucking. (TR 245)
In any event, from September 1992, after being informed that
he had been found eligible for SSA benefits, until he was
reinstated with Yellow in December 1993, Complainant did not
apply for any jobs or work anywhere. (R-RESP 3, p. 130)
Complainant gave conflicting reasons for not seeking work during
this period. He felt that if he obtained a steady job, his wages
could be attached to pay his debts and he wanted to avoid that.
(TR 166) He also felt that without at least five years
seniority, he would not make much money as an OTR truck driver
for another motor carrier although it was pointed out to him that
when he had worked for Yellow for only three years (in 1981), he
earned over $25,000.00, and after four years, over $35,000.00.
(TR 167)
In the spring of 1992, when he received his lump sum
settlement check for his workers' compensation claim against
National Transportation, Complainant quit his job with Southern
Freightways, assertedly to return to Cleveland to give his
deposition in this case. (TR 64, 262, 292) In June 1992,
Complainant returned to Cleveland. (TR 249, 443-444) His
deposition was taken that same month in Cleveland. (TR 339)
[PAGE 11]
Complainant was questioned at length on cross-examination
concerning the validity of this reason for quitting his job with
Southern. Respondent attempted to take his deposition in Florida
and filed a motion for leave to do so. Complainant denies knowledge that his attorney opposed the motion or that it was for
that reason the deposition ended up being taken in Cleveland. (TR
265)
After receiving and reviewing Complainant's Social Security
disability file on June 28, 1994, Respondent arranged for him to
undergo a physical and psychiatric evaluation. Based on the
results of a medical examination performed on September 28, 1994,
Respondent was satisfied as to Complainant's physical and
psychiatric competence. Accordingly, Respondent returned
Complainant to active work status in early October 1994. (TX 138,
Respondent's Brief, p. 61)
CONCLUSIONS OF LAW
Once it is determined that an employer has violated the
Surface Transportation Assistance Act, as already found in this
case, Complainant, the discriminatee, is entitled to an
appropriate award of back pay. Moravec v. H C & M
Transportation, Inc., Case No. 90-STA-44 (Sec. Final Dec. and
Order, Jan. 6, 1992); Hufstetler v. Roadway Express, Inc.,
Case No. 85-STA-8 (Sec. Final Dec. and Order, August 21, 1986).
Back pay not only reimburses the innocent employee for the actual
losses suffered but "furthers the public interest advanced by the
deterrence of such illegal acts." N.L.R.B. v. Madison
Courier, Inc., 472 F.2d 1307, 1316 (D.C. Cir. 1972).
In computing the appropriate amount of back pay, courts have
adopted two basic principles: 1) unrealistic exactitude is not
required, and 2) uncertainties in determining the amount of
earnings should be resolved against the discriminating employer.
Pettway v. American Cast Iron Pipe Company, 494 F.2d 211
(5th Cir. 1974); Johnson v. Goodyear Tire and Rubber
Company, 491 F.2d 1364 (5th Cir. 1974).
Back pay is appropriately tolled when the unlawful
discrimination is remedied. James v. Stockham Valves and
Fittings Co., 559 F.2d 310, 358 (5th Cir. 1977). Ordinarily,
the termination date of back pay liability is upon a bona fide
offer of reinstatement. Ford Motor Company v. EEOC, 458
U.S. 219, 102 S.Ct. 3057, 73 L.Ed.2d 721 (1983); Figgs v.
Quick Fill Corp., 766 F.2d 901 (5th Cir. 1985). However in
the instant case, the discrimination was not remedied upon the
reinstatement of Complainant. Even though Respondent reinstated
Complainant on December 17, 1993, Complainant worked for only a
few weeks before being transferred to unpaid sick status on
January 29, 1994. (R-RESP 6, 7) Additionally, Complainant's
medical coverage was terminated on February 28, 1994. Based on
Complainant's unpaid sick status as well as his lack of medical coverage, I find that
Respondent's back pay liability was not tolled until Complainant
was placed in active work status in October 1994. [12]
According to the relevant case law, back pay includes not
only "straight salary" but also all earnings lost by the
discriminatee, including interest, overtime, shift differentials,
and any fringe benefits such as vacation and sick pay to which
the employee would have been entitled had it not been for the
illegal discriminatory act of the employer. Pettway,
supra, 494 F.2d at 263. Accordingly, Complainant is entitled
to full payment for vacation, sick pay, holidays, and birthdays
pursuant to the collective bargaining agreement covering
Complainant's employment. According to Complainant's seniority
as well as the terms of the National Master Freight Agreement by
which Complainant and Respondent are bound, Complainant is
entitled to approximately three weeks of paid vacation, five days
of paid sick leave, five days of holidays, and one day for his
birthday for each year since his date of discharge. (CX 1, 2; TR
9) Therefore, for the period from March 1990 to October 1994,
Complainant is entitled to an additional 26 days of back pay.
Pursuant to the pertinent case law, an appropriate method of
computing back pay is to use the earnings of similarly-situated
employees. Pettway, 494 F.2d at 262; Reed v. National
Minerals Corp., Case No. 91-STA-34 (Sec. Final Dec. and
Order, July 24, 1992). In this case, the parties have already
stipulated to the comparable earnings of three individuals with
similar job titles and seniority dates to those of Complainant.
(Revised JX 1) [13]
According to the parties' stipulation as to earnings,
Complainant would have earned a total gross back pay of
$233,545.00 had he continued to be employed from March 1990
through September 16, 1994. See, N.L.R.B. v. Pilot
Freight Carriers, Inc., 604 F.2d 375, 377. (Revised JX 1)
[14] However, Complainant has partially mitigated his damages
by wages earned through interim employment. Since 1990,
Complainant has earned $24,941.00. Such interim wages must be
deducted from Complainant's gross pay of $236,116.00 to obtain a
net back pay of $221,176.00. N.L.R.B. v. Gullett Gin Co.,
340 U.S. 361 (1951). [15]
However, Respondent alleges that in addition to the offset
for interim earnings, Complainant's back pay should be further
reduced in light of Complainant's failure to appropriately
mitigate his damages through alternative employment. Respondent
argues that discharged workers such as Complainant are required
to diligently seek and sustain comparable employment so as to
mitigate their damages. Ford Motor Company, 458 U.S. 219,
231-233; Sennello v. Reserve Lift Insurance Co., 667
F.Supp. 1498 (S.D. Fla. 1987).
Based on the evidence of the record, I find that Complainant
appropriately mitigated his damages. Since Judge Thomas' 1990
Order, Complainant actively pursued employment both through
personal contacts and by responding to newspaper advertisements.
Since March 1990, Complainant has worked for a total of seven
trucking companies in both Florida and Ohio in positions
substantially equivalent to his former position with Respondent.
Based on the evidence as a whole, I find that Complainant has
exercised reasonable diligence in seeking alterative employment,
thus successfully mitigating his damages. N.L.R.B. v. Arduini
Manufacturing Corporation, 394 F.2d 420, 423 (1st Cir. 1968);
N.L.R.B. v. Laborers' Int. Union of North America, 748 F.2d
1001, 1005 (5th Cir. 1984).
As for Respondent's assertion that Complainant did not
adequately sustain his employment with these companies, I find
the reasons for Complainant's departure from these jobs to be
reasonable and justified in light of Complainant's chronic
medical problems, disruptions that occurred in his personal life,
and his ongoing involvement in the present litigation.
Respondent further argues that Complainant failed to
mitigate damages after September 19, 1992,
upon notification by the Social Security Administration that he
was entitled to disability benefits. Contrary to Respondent's
assertions, I do not find it unreasonable that Complainant did
not seek employment after September 1992 after he had been found
to be disabled and incapacitated due to mental problems and his
chronic hidradenitis. To find otherwise, would be the equivalent
of crediting Respondent's counsel's pronouncement that
Complainant is a "con artist [who] hatched a plan to defraud the
Social Security Administration" (Respondent's Post-Hearing Brief,
p. 52), over the documented findings of the Social Security
Administration, based on the opinions of two physicians, one of
whom is a psychiatrist, that Complainant was totally disabled as
of the date of Dr. Rees' examination and report, June 25, 1992.
I find no justification for doing so.
Furthermore, except to the extent hereinafter discussed,
Complainant's back pay should not be reduced by the amount of
money Complainant received in Social Security Disability
Benefits. According to the collateral source rule, benefits
received from other sources do not diminish Respondent's
liability for the damages resulting from its illegal act.
Craig v. Y & Y Snacks, Inc., 721 F.2d 77, 83 (3d Cir.
1983). Benefits received from unemployment compensation, Social
Security, and welfare programs are appropriately considered
collateral benefits and are not deducted from the amount of the
back pay award. Craig, 721 F.2d at 83. Nevertheless,
because, contrary to his obligation agreed to when he applied for
Social Security Disability Benefits (R-RESP 63), Complainant
failed to inform SSA that he had been reinstated in his job with
Respondent and had begun work on December 20, 1993, some
reduction from his back pay award for SSA benefits received in
the period thereafter, is appropriate.
Accordingly, Complainant's back pay award is not to be
reduced for the Social Security Disability Benefits received by
Complainant from January 1993 through December 20, 1993. To
deduct these payments from the back pay award would deprive
Complainant of an advantage and confer it on a wrongdoing party,
in this case, the Respondent. Craig, 721 F.2d 83.
Smith v. United States, 587 F.2d 1013, 1015 (1978).
Johnstown v. Harris County Flood Control Department, 869
F.2d 1565 (5th Cir. 1989). However, a reduction in damages of
$9,000.00 for SSA Disability Benefits received in 1994 will be
made from the final award.
With regard to Complainant's medical expenses incurred since
March 1990, my Order provides for Respondent to reimburse
Complainant for all incurred medical expenses from March 1990
through October 1994. Although Respondent briefly reinstated
Complainant's medical benefits in December 1993, they were again
terminated once Respondent learned that Complainant was receiving
Social Security Disability Benefits in January 1994. Pursuant to
a letter dated May 10, 1994, Respondent last contributed to
Complainant's health plan on February 28, 1994. (R-RESP 128)
Accordingly, Respondent should reimburse Complainant for all
medical expenses from March 1990 until such time as Respondent
can provide documentation that it has activated Complainant's
medical coverage.
As for the two surgeries performed in January 1990 and
February 1992 and paid for by Welfare for Complainant's
hidradenitis, I find that Respondent is responsible for their
cost as the agency providing the welfare benefits will look to
Complainant for reimbursement for the amount it paid for the
medical services, when Complainant is financially able to repay.
Additionally, Respondent shall pay Complainant's attorney
fees and other reasonably incurred costs. The Court has received
itemized attorney's fees from Lincoln R. Thorman, Esq. as well as
from the law firm of Chattman, Sutula, et al. (CX 3, 4) In his
request for attorney's fees, Attorney Thorman seeks a total of
$300.00, representing 2.00 hours of attorney time at $150.00 per
hour. (R-COMP 3) In its attorney's fee request, Chattman,
Sutula, et al. seeks a total of $46,865.00, representing 6.50
hours by Aaron J. Reber at $50.00 per hour; 1.00 hour by Bonnie
G. Kraus at $100.00 per hour; 62.50 hours by Gerald B. Chattman
at $150.00 per hour; 1.00 hour by a law clerk at $50.00 per hour;
248.50 hours by Richard G. Ross at $150.00 per hour; .50 hour by
Sanjay K. Varma at $125.00 per hour; 2.00 hours by Susan St. Onge
at $75.00 per hour; and 1.50 hours by Terri A. Beer at $50.00 per
hour. (R-COMP 3)
Respondent objects to Complainant's attorney's fees,
claiming they are excessive and duplicative. Respondent contends
that the fees are duplication in that Attorney Thorman's fees
cover the same time period as those claimed by Chattman, Sutula,
et al. Disagreeing with Respondent, I do not find these fees
duplicative or excessive in light of the complexity and
procedural history of this case. Furthermore, I find it
justifiable and even prudent that Complainant consulted more than
one attorney regarding the matters of this case. In
consideration of the quality of the representation, the nature of
the issues involved, and the amount of money at stake, I find the
total requested attorney's fees of $47.165.00 to be appropriate.
With regard to all damages incurred prior to March 1990, I
am persuaded to Judge Thomas' reasoning and rationale contained
in his Decision and Order on Damages issued June 18, 1990.
Accordingly, I adopt Judge Thomas' 1990 Order in its entirety
with the exception of Judge Thomas' finding regarding medical
expenses. Secretary Dole modified Judge Thomas' Order by
requiring Respondent to reimburse Complainant only for his
incurred medical expenses since his date of discharge and to pay
sufficient monies into Complainant's health and welfare fund to
enable Complainant to receive immediate coverage upon
reinstatement. As it is unclear from the record whether
Respondent has fully complied with Judge Thomas' 1990 Order, I
hereby order Respondent to comply with it now, specifically to
pay or to provide to Complainant: 1) back pay of $42,710.04
(which reflects a deduction for Complainant's interim earnings of
$5,769.02); 2) interest of $3,502.54; 3) medical expenses of
$6,584.02; 4) litigation costs of ,095.36; and 5) costs of
seeking alternative employment of $15.54.
RECOMMENDED ORDER
Respondent, Yellow Freight Systems, Inc., is hereby ORDERED
to pay or provide to Complainant, Thomas E. Moyer, the following:
1. Back pay in the amount of $202,175.00;
2. Interest on the back pay award to be calculated
pursuant to 26 U.S.C. §6621 (1988) (rate for
underpayment of Federal income tax);
3. All reasonable medical expenses incurred by
Complainant from March 1990 through
October 1994; and
4. Attorney's fees in the amount of $47.165.00
GEORGE P. MORIN
Administrative Law Judge
GPM/rlh/lab
[ENDNOTES]
[1] The following abbreviations have been used throughout this
Decision and Order: R-COMP - Complainant's exhibit; R-RESP -
Respondent's exhibits; JX - Joint exhibit, and TR - Transcript of
the hearing.
[2] At the end of the hearing, the court specifically provided
for the parties to file simultaneous briefs. (TR 496) Counsel
for the Complainant gave no indication at that time of any
inability or unwillingness to comply with the court's request for
briefs.
[3] In order to document this truck driver shortage, Respondent
introduced voluminous documentary evidence, mostly in the form of
classified advertisements appearing in newspapers to which
Complainant would have had access, and industry and government
statistics supporting the existence of the driver shortage. In
light of the fact that there was no oral evidence elicited,
either on direct or cross examination regarding this material nor
was the truth of the matter asserted in the documentary evidence
questioned, the court sees no need for extensive analysis of this
portion of Respondent's case.
[4] Respondent's method of computing this offset is contained
in footnote 16 to Respondent's Proposed Findings of Fact and
Conclusions of law as to Additional Appropriate Relief and is set
forth here in its entirety:
16/ Complainant quit higher paying
employment at Superior Fleet after two weeks
employment in January 1991 @ $788/week (,577 2) to
work for PAM, lower paying employment ($3,513
7 weeks = $502/week) and for Transportation Unlimited,
lower paying employment ($400/week).
Complainant is, therefore, charged with 54 weeks at the
Superior Fleet rate of $788/week ($42,552), less his
PAM and Transportation Unlimited Earnings.
[5] June 25, 1992 was the date Complainant was seen
by Dr. June M. Rees for an interview and psychiatric
evaluation in connection with his SSA disability claim.
Dr. Rees' seven-page report is in evidence as R-RESP
113. A prior physical examination, done for the same
purpose, has been performed ten days earlier, on June
15, 1992, by Dr. Ratan K. Mukherjee. (R-RESP 115) In a
letter from Gwendolyn S. King, Commissioner of Social
Security, to Diane Y. Van Niel, a friend of Complainant
and his designated "Representative Payee", dated
September 19, 1992, it is indicated that SSA determined
that June 25, 1992 was the onset date of Complainant's
disability, thus the significance of this date in
Respondent's second alternative method of computing
additional damages.
[6] Except for the short period from February 22,
1988 to March 22, 1988, when Complainant worked as a
city driver, Complainant was employed as an OTR driver
for the entire period of his employment with
Respondent.
[7] At his deposition taken January 28, 1994,
Complainant intimated that the real reason he was
discharged by Continental Baking was because ". . .
they found out that I was trying to get my job back at
Yellow." (R-RESP-3, p. 151) Further on in his
deposition testimony on this subject, however,
Complainant stated that he told the Continental
interviewer of this proceeding and that he could be
called back to work at Yellow Freight at any time, but
that they hired him anyway.
[8] Continental was a unionized employer which, had
Complainant completed a probationary period, would have
paid him wages and benefits almost equal to those he
had been receiving when he was employed by Respondent.
(TR 203) One of Respondent's arguments in support of
its contention that Complainant failed to mitigate
damages is that he avoided seeking employment with
unionized companies. In the course of his cross-
examination, Complainant testified that Continental
Baking was the only union company he worked for. (TR
241)
[9] Although Complainant testified that he worked for
National Transportation Company for "about four months"
(TR 191), this does not appear to have been the case,
considering the relatively small amount of money he
earned with that employer.
[10] The notice sent to Complainant by Premium on
December 19, 1989, gives as the reason for his
termination, "...unsatisfactory work performance and
poor attendance during your probationary period."
[11] Complainant's employment with M&K Leasing was
not considered in Judge Thomas' 1990 opinion on
damages. The last earnings included in Judge Thomas'
1990 order were those earned by Complainant at Premium
Enterprises.
[12] This finding is based upon Respondent's
assertion in its brief that it returned Complainant to
active work status shortly after the October 3, 1994
hearing. (Respondent's brief p. 61)
[13] Pursuant to an agreement made at the October 4,
1994 hearing, Complainant and Respondent stipulated
post hearing to a modified earnings chart reflecting
average monthly earnings. Said chart was admitted post
hearing as Revised Joint Exhibit 1.
[14] The parties only stipulated to earnings through
September 16, 1994. (Revised JX 1) However, according
to Respondent's brief, Complainant did not resume his
active work status until early October 1994.
Therefore, Complainant's gross back pay would be
further increased to reflect earnings through the date
on which Respondent returned Complainant to (continued)
(Footnote 14 continued) active work status. Based on
an average monthly earning of $4,285.00, Complainant's
gross back pay should include an additional $2,571.00
to reflect approximate earnings through October 4, 1994
(($4,285.00 30) x 18 days). Accordingly, with this
explanation, Complainant's gross back pay amounts to
$236,116.00.
[15] All interim earnings prior to Complainant's work
with M&K Leasing in late December 1989 have already
been included in Judge Thomas' Order on damages.
