DATE: May 29, 1991
CASE NO. 90-STA-0021

IN THE MATTER OF

ASSISTANT SECRETARY OF LABOR FOR
OCCUPATIONAL SAFETY AND HEALTH,
   PROSECUTING PARTY,

AND

VICTOR POLEWSKY,
   COMPLAINANT,

v.

B & L LINES, INC. A/K/A
RED DIAMOND TOURS, INC.,
   RESPONDENT.

BEFORE:   THE SECRETARY OF LABOR

   This case arises under the employee protection provision of the Surface Transportation Assistance Act of 1982 (STAA), 49 U.S.C. app. § 2305 (1988), and is before me for review of theRecommended Decision and Order Upon Remand by the Acting Secretary of Labor (R.D. and O.) issued by Administrative Law Judge (ALJ) Robert D. Kaplan on March 7, 1991. As permitted by the regulations, see 29 U.S.C. § 1978.109(c)(2) (1990), the Assistant Secretary of Labor for Occupational Safety and Health (Assistant Secretary) has filed a statement in support of the ALJ's decision. No other briefs or statements have been filed before me.

   In a Decision and Order dated December 11, 1990, the Acting Secretary accepted the ALJ's recommended findings that Respondent violated the STAA and that Complainant is entitled to an offer of reinstatement to his former position as a part-time bus driver. The Acting Secretary concluded, however, that the ALJ erred in declining to award back pay. Finding that the record established Complainant's gross back pay as $117.03 per week and

that the burden of proving mitigation of damages was on Respondent, the Acting Secretary remanded the case for an evidentiary hearing and determination on the amount, if any, of deductions from gross back pay.

   On remand, Respondent attempted to meet its burden by showing that Complainant failed to make reasonable efforts to mitigate his damages and that Complainant's post-discharge earnings should be deducted from gross back pay. The ALJ concluded that Complainant's gross back pay should be reduced only by excluding any payment of back wages in the two months in which Complainant had earnings from full-time employment.

   After reviewing the entire record, I find that, with the limited exception noted below, n. 1 infra, the ALJ's factual finding are supported by the evidence and are, therefore, conclusive. See 29 U.S.C. § 1978.109(c)(3). I also accept the ALJ's conclusion that Complainant's gross back pay should be reduced only by his post-discharge full-time earnings. I do not, however, agree with the ALJ's method of computing this deduction from back pay.

   In arguing that Complainant did not reasonably mitigate his damages, Respondent maintained that Complainant refused to accept suitable alternative employment and failed diligently to search for alternative work. I agree with the ALJ that neither argument finds any support in the record or the law. Even if the lower-paying, non-union bus driver position offered by Arrow Lines constituted alternative employment, which I do not find apparent from the evidence, the job was not substantially equivalent to Complainant's position with Respondent, and Complainant did not breach his obligation to mitigate damages by declining to accept it. See March 26, 1990, Transcript at 57-S8; Carrero v. N.Y. Hous. Auth., 890 F.2d 569, 580 (2d Cir. 1989); Rasimas v. Mich. Dep't of Mental Health, 714 F.2d 614, 624-26 (6th Cir. 1983). Nor has Respondent shown that Complainant failed to use reasonable efforts in seeking employment. See EEOC v. Kallir. Philips' Ross. Inc., 420 F. Supp. 919, 925-26 (S.D.N.Y. 1976), aff'd without op., 559 F.2d 1203 (2d Cir. 1977), cert. denied, 434 U.S. 920 (1977). Complainant testified concerning his numerous applications and interviews, January 31, 1991, Transcript at 23-28 and Respondent has not shown that jobs for Complainant were available during the back pay period. Although Respondent's claim that Complaint's delay in pursuing employment outside his field of experience was unreasonable, I disagree. See Ford Motor Co. v. EEOC, 458 U.S. 219, 231-32 ( 1982 ) .

   Additionally, the ALJ's treatment of Complainant's post-discharge part-time earnings is proper. Since Respondent has not proven or shown any likelihood that Complainant's post-discharge part-time earnings with Arrow and Chieppo could not have been achieved had he continued to work for Respondent, Respondent is not entitled to any offset for those earnings. Bing v. Roadway Express. Inc., 485 F.2d 441, 454 (5th Cir. 1973); Nelson v. Walker Freight Lines. Inc., Case No. 87-STA-24, Sec. Dec. and Order of Remand, January 15, 1988, slip op. at 5.

   As the ALJ found, Respondent is entitled to deductions for Complainant's post-discharge full-time employment. (As of the hearing date, Complainant had obtained full-time employment during April 1989, and September 1990.¹ ) Although I have considered the parties' arguments and the ALJ's findings concerning the formula for computing Complainant's net back

¹The ALJ's finding, R.D. and O. at 5, of Complainant's gross earnings with Elgin Electric in September 1990, is corrected from $731.25 to $731.50 (Canadian). Exhibit H.