II. FINDINGS OF FACT

A. Background

   ASIS' responsibilities included a combination of seasonal and permanent projects. Much of the outdoor work on the pipeline was seasonal due to weather conditions. TR 408. However, some of the work, such as the inspections conducted at VMT, occurred year round. TR 409. Because of this irregular employment, ASIS maintained two levels of personnel: active status, employees currently assigned and working on specific projects; and inactive status, employees not currently working but available for recall on future assignments. TR 408; CX 52. If an inspector completed a seasonal project, and if no work was available immediately thereafter, the inspector would be laid off, but eligible for rehire once appropriate work became available. TR 408. After an inspector remained on inactive lay off status for a certain period of time without being rehired, ASIS would terminate that inspector's employment altogether; and the inspector would have to reapply to ASIS to be eligible for further work. TR 408-09.

B. Mr. Tracanna's Employment with ASIS

   Mr. Tracanna was hired on December 6, 1993 by ASIS as a electrical field inspector and assigned to VMT to work on the National Electric Code (hereinafter "NEC") Compliance Project. TR 33, 52-54, 171; CX 18. His hourly rate of pay was $26.00 for regular time and $39.00 for overtime; in addition Mr. Tracanna received $70.00 per day to live in Valdez, Alaska. TR 33-36; CX 18. The NEC Project was promulgated in light of the Congressional oversight hearings and other regulatory reviews of the "whistleblower" allegations, so as to identify the electrical deficiencies at VMT and on the pipeline. This special inspection project was being conducted concurrent with daily oversight and inspection at VMT. TR 235-36. At the time in which Mr. Tracanna began working on the NEC project, it was governed by two NEC inspection plans, NEC Compliance Project QA-137 Inspection Plan and NEC Quality Plan QA-136. RX 44; RX 45; TR 532-35.

   Mr. Tracanna's direct supervisor at VMT at the time of his employment with ASIS, beginning in December of 1993 and through his lay off in April of 1994, was Robert Richardson. TR 55. James Whitaker was also an ASIS supervisor at VMT, with the responsibility of overseeing the regular terminal inspection work. TR 194. Jack Blume was the ASIS supervisor in Fairbanks, Alaska over inspection work done along the 800-mile pipeline. TR 314-15, 356. Kenneth Catalino was the Director of Human Resources for ASCG and ASIS during the relevant time period herein. TR 127. Lo Ann Larson worked under Mr. Catalino as the Human Resources Manager for ASCG and ASIS. TR 402. Marvin Swink was the Vice- President/General Manager of ASIS until May 6, 1994, when he and three other mangers were terminated. TR 376.379. William "Billy" Carver became the General Manager of ASIS after Mr. Swink was terminated. TR 531. Larry Coffman, Lee Adams, and Walter Glover were also ASIS electrical inspectors assigned to work at VMT or on the pipeline. TR 222, 289. In addition, James Kingrea was the Alyeska manager of the inspection process and William "Chuck" Biddy was his assistant. TR 304, 343.

   While working on the NEC Project, Mr. Tracanna prepared a Non- Conforming Report (hereinafter "NCR") on February 25, 1994. TR 59; CX 14. The NCR identified a problem with the electrical grounding system at VMT; Mr. Tracanna categorized such problem as an "imminent threat" as it had the "potential for an unsafe condition which could present a significant hazard to plant personnel." CX 14. Various people responded to Mr. Tracanna's NCR in a negative fashion. Immediately after the NCR was issued, two Alyeska employees, Gabe Dunham and Robert Anderson, told Mr. Tracanna that the NCR should not have been written and should be withdrawn. TR 60-62. A meeting regarding the NCR was convened wherein another Alyeska employee, Mike Katyryniuk, told Mr. Tracanna that he was not a "team player" and that he too, believed that Mr. Tracanna should not have written the NCR. TR 63-64. Such meeting, however, was constructive in that Alyeska consultant Dr. Davies, a professor of electrical engineering, confirmed the substance of Mr. Tracanna's NCR, finding that the electrical system deficiency did create an "imminent threat." TR 65-66.

unsafe. TR 173. Rather than returning Mr. Tracanna to his regular duties as a terminal electrical inspector, ASIS placed Mr. Tracanna on lay off status effective April 2, 1994. CX 23.

   Finally, on August 5, 1994, Mr. Adams also requested that he be removed from the AKOSH Project because of safety issues and reassigned to other electrical inspection duties. CX 24. Based on Mr. Coffman's testimony, it appears that Mr. Adams was in fact, reassigned to other inspection duties at VMT. TR 234.

   It appears that Mr. Coffman, Mr. Adams, and Mr. Tracanna had similar feelings and reacted similarly to the adoption of the AKOSH standards. See CX 20. However, based on the evidence herein, it appears that Mr. Coffman and Mr. Adams were treated disparately from Mr. Tracanna. Not only were Mr. Coffman and Mr. Adams able to retain their former positions as electrical inspectors, but they were also sent an exit letter dated May 20, 1994, addressing their concerns regarding the AKOSH standards and possible resolutions to such concerns. CX 27. Mr. Tracanna was not re-employed as an electrical inspector, nor was he furnished an exit letter that addressed his concerns regarding the AKOSH Project.

   ASIS contends that their failure to hire Mr. Tracanna for an electrical inspector position was due to their failing financial situation beginning in the middle of 1994. TR 516. The overhead costs were no longer being funded by Alyeska because the man hours had exceeded the contract requirement, and by late 1994 ASIS' profits were diminishing rapidly. TR 516-17. By the first quarter of 1995, ASIS was making an effort to contain costs by reducing the size of its staff; reducing the number of inspectors by 20-30%. In addition, Mr. Carver stated that Alyeska had reduced the number of required inspections. TR 516-30.

   There is substantial evidence in the record, however, supporting Complainant's contention that despite ASIS' failure to rehire him as an electrical inspector at VMT from the period of his lay off in April of 1994 until he formally resigned his position at ASIS in August of 1995, a tremendous amount of inspection work did exist at VMT during this relevant time period. As a result of the problems identified at VMT with respect to electrical systems and installations, there was a substantial electrical inspection work to be done. TR 219. Mr. Coffman and Mr. Glover credibly testified to this effect, wherein both witnesses stated that they were working a great deal of hours yet were unable to complete their work because there was so much of it. TR 219, 234, 240, 293.

   Alyeska employees, Mr. Biddy and Mr. Kingrea, also testified that during 1994 and 1995, not only was there a continuing need for electrical inspection work on the pipeline and at VMT, but ASIS failed to fill the Alyeska requests for such inspectors. TR 313- 14, 675-76. In fact, Mr. Biddy responded affirmatively when asked whether "the shortage of electrical inspections [was] a concern to Alyeska during the bulk of the ASIS contract following the 1993 Congressional hearings." TR 315. Mr. Biddy also stated that he and Mr. Kingrea discussed the fact that Mr. Tracanna was available for employment, yet was not

being hired by ASIS to fill the Alyeska work orders. TR 314. Mr. Kingrea, similarly stated that Alyeska had submitted various work orders to ASIS for inspection services, yet they remained unfilled and outstanding. TR 365. Moreover, based on his knowledge of Mr. Tracanna, Mr. Kingrea believed that Mr. Tracanna would have qualified for a number of such positions. TR 365.

   Despite overwhelming testimony that there were inspector jobs both appropriate and available for Mr. Tracanna during the relevant time period, ASIS failed to hire Mr. Tracanna for such positions. Mr. Tracanna testified that Mr. Swink and Mr. Richardson told him that they no longer had any electrical inspector work for him after he resigned from his position with the AKOSH Project. TR 70-71. Thereafter, however, ASIS and Mr. Tracanna engaged in a series of discussions regarding possible alternative positions. TR 80-100. In light of these offers, which Mr. Tracanna believed to be either illusory or inappropriate, and in light of the fact that he worked a negligible schedule in the months following his April 1994 lay off, Mr. Tracanna completely resigned from his employment with ASIS on August 1, 1995. CX 60; RX 3:22d.

C. ASIS' Employment Offers to Rehire Mr. Tracanna

full-time position doing electrical inspection work inside Alyeska's office buildings in Anchorage. TR 598. Mr. Tracanna stated that he believed such position was an entry level position, and thus "it would be a demotion to take a position like this because the skills I have and the training, background and experience, none of these quality specialists would have." TR 89.

   Concurrent with ASIS' offer of employment as an Electrical Quality Specialist was an offer to Mr. Tracanna as an electrical inspector at VMT with a two week on/two week off schedule opposite Larry Coffman. TR 84-85, 598-604. As admitted by Mr. Carver, although the workload could sustain a 60-70 hour workweek and that such position would last approximately three months, the position was merely a half-time position. TR 601- 02. Curiously, although Mr. Tracanna was offered this position in the first week of June to begin the first week of July, Mr. Coffman did not start a rotational two week on/two week off schedule until August 10, 1994. RX 3:25; see also CX 83. Mr. Tracanna ultimately declined the position, as he did not want to commit himself to a part-time position when he anticipated obtaining a full-time position. TR 98.

   On June 17, 1994, Mr. Carver offered Mr. Tracanna a position working as a Baseline Inspector on the pipeline. TR 605-07. However, Mr. Tracanna declined the position because he did not want to work on the line, as he was concerned for his personal safety. TR 646-47. Based on a number of unusual events which occurred after the Congressional hearing, i.e., Mr. Tracanna's car was broken into, another whistleblower's apartment had been broken into, an inspector sitting in his truck at a pump station was found dead, Mr. Tracanna felt that a job in which he worked by himself out on a remote area of the pipeline offered absolutely no protection. TR 655-59.

   The actual jobs that Mr. Tracanna obtained after his lay off in April of 1994 and until his formal resignation in August of 1995, were only sporadic, short-term assignments for ASIS. Thus, his employment status fluctuated between active employment, wherein he was working on an inspection assignment, and lay off status, wherein he was eligible for recall or rehire but not working. In June of 1994, Mr. Tracanna worked for five days as a crane inspector on the pipeline. TR 77-78. Following that job, Mr. Tracanna filled in for Mr. Coffman during his vacation as a baseline terminal inspector from July 3, 1994 through August 4, 1994. TR 78-79.

   On September 6, 1994, Mr. Tracanna was placed on lay off status. CX 36. On September 21, 1994, Mr. Tracanna received notice from Ms. Larson that Mr. Carver's memo to President Robert Hilton was being placed in his personnel file. CX 38. This subject of this memo was "Joe Tracanna's Employment Timeline." CX 39. Such memo detailed in numbered and chronological paragraphs the various offers of employment made to Mr. Tracanna from the date of hire in December 1993 through his lay off in September of 1994. CX 39. Mr. Tracanna responded to the memo, stating that he disagreed with the memo because it was inaccurate, and that ASIS' obsessive documentation of the employment offers was misleading as

they attempted to show that he was declining offers merely because he did not want to be employed. CX 38.

   Between September 1994 and March 1995, ASIS did not offer any employment to Mr. Tracanna. TR 99. Finally, however, he conducted another series of crane inspections for approximately four weeks in April and May of 1995. See CX 72. Mr. Tracanna was subsequently placed on lay off status on June 4, 1995. CX 51. On August 1, 1995, Mr. Tracanna had a discussion with Ms. Larson, wherein he requested to be completely removed from the ASIS lay off roster. CX 60. In a letter dated August 2, 1995, confirming his conversation with Ms. Larson, Mr. Tracanna stated that ASIS and Alyeska

created a situation where I am now driven to quit my employment as an electrical inspector with ASIS. I have endured discrimination, intimidation, harassment, pay cuts and blacklisting all because of exercising my rights with-in [sic] my employment which are protected activities under the law. This situation with regard to the many circumstances I now consider intolerable. CX 61.

   Mr. Tracanna ultimately gained full-time employment as an electrical inspector with Chugach North Technical Services on August 12, 1996. TR 113. He continued to work for Chugach North until he assumed full-time employment with Alyeska in January of 1998. TR 115.

D. Attitude Toward Whistleblowers

   There is substantial evidence in the record regarding the general hostility which Mr. Tracanna experienced throughout his employ with Respondent. As the whole community surrounding Valdez was aware of the Congressional hearings and the people working in the pipeline industry were specifically aware of Mr. Tracanna's participation as a whistleblower against Alyeska in 1993, it appears that Mr. Tracanna, along with other whistleblowers, was subjected to instances of hostility by both Alyeska and ASIS employees. Various witnesses testified to this effect.

   Mr. Glover stated that the original whistleblowers of the 1993 Congressional hearing were "commonly referred to as black-listed, trouble-making whistle-blowers . . . and they wouldn't be coming back." TR 296. Mr. Coffman testified that he personally experienced hostility, and stated that "[i]t was a bad work environment for everyone after [the 1993 Congressional hearing], especially if you were an inspector." TR 215; see generally TR 214-19. Mr. Biddy also stated that there was a lot of resentment and hostility against the rehiring of whistleblowers because of the negative exposure which their disclosures caused the pipeline and the terminal. TR 305, 317. Specifically, Mr. Kingrea stated that two ASIS supervisors, Mr. Blume and Mr. Carver, had remarked negatively about whistleblowers and that both supervisors had ill-feelings about their continued existence in the workplace. TR 356-57. In addition, both Mr. Whitaker and Mr. Coffman testified to specific instances in which Mr. Richardson, Mr. Tracanna's immediate supervisor on the NEC/AKOSH Project, made derogatory comments about Mr. Tracanna's employment with ASIS. TR 194-95, 230-31.

III. CONCLUSIONS OF LAW

A. Jurisdiction

   The parties stipulated that Respondent is subject to the Acts, the Toxic Substances Control Act, 15 U.S.C. § 2622, the Water Pollution Act, 33 U.S.C. § 1367, the Clean Air Act, 42 U.S.C. § 7622, and the Solid Waste Disposal Act, 42 U.S.C. § 6971, at all times relevant to the matter herein, and that Complainant was a covered employee under the same while in the employ of ASIS. TR 46. As such, there are no jurisdictional issues to be resolved.

B. The Legal Framework of Complainant's Retaliation Action Under the Enumerated Acts

   The legal framework to be applied in whistleblowing proceedings has become a jurisprudence recited ad infinitum in such cases. Carroll v. Bechtel Power Corp., 91-ERA-46 (Sec'y Feb. 15, 1995) has become the standard citation for Secretarial decisions, delineating the general burdens of proof and production. See Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248 (1981). The Secretary and subsequently, the Administrative Review Board, has recognized however, that such jurisprudence has become less instructive, because regardless of whether complainant is successful in presenting a prima facie case and regardless of whether Respondent has rebutted that showing, the ultimate burden of proof is the responsibility of Complainant. Carroll v. Bechtel Power Corp., 91- ERA-46 (Sec'y Feb. 15, 1995), slip op. at 11 n.9, aff'd sub nom. Carroll v. U.S. Dept. of Labor, 78 F.3d 352, 356 (8th Cir. 1996).

   Once the case is fully tried on the merits and the Respondent has produced evidence in an attempt to show that Complainant was subjected to adverse employment action for a legitimate, nondiscriminatory reason, as in the matter herein, it no longer serves any analytical purpose to answer the question whether Complainant presented a prima facie case. Instead, the relevant inquiry is whether Complainant prevailed by a preponderance of the evidence on the ultimate question of liability. See St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993); Darty v. Zack Company of Chicago, 82-ERA-2 (Sec'y Apr. 25, 1983), slip op. at 7-8. If he does not prevail, it matters not at all whether he presented a prima facie case. If he does, whether he presented a prima facie case is also irrelevant. Adjiri v. Emory University, 97-ERA-36 @ 6 (ARB July 14, 1998); see also Yule v. Burns International Security Service, 93-ERA-12 (Sec'y May 24, 1995) (when the Respondent presented evidence to rebut a prima facie case of an ERA violation, the Secretary is not required to engage in a lengthy analysis of all the elements of a prima facie case).

   In light of the aforesaid legal principle, I turn to the substantive issue presented in this matter, specifically upon consideration of the record as a whole, whether Mr.

   Respondent first asserts that it was because of Complainant's own actions that caused him to be placed on lay off status; specifically, it was Mr. Tracanna's own choice to resign from the AKOSH Project. As such, his lay off cannot be construed as an adverse employment action. Respondent further argues, if the undersigned considers such lay off to be an adverse action, that it had a legitimate nondiscriminatory reason for taking such action, that his lay off was not motivated by discrimination, but rather for reasons related to ASIS' financial situation.

   With respect to ASIS's first contention, that it was because of Complainant's own resignation which fueled his placement to lay off status, I find that an appropriate analysis includes the law of constructive discharge. "Constructive" discharge assumes that a complainant was not formally discharged, but was forced to resign as opposed to quitting voluntarily. A finding of constructive discharge requires proving that the working conditions were rendered so difficult, unpleasant, unattractive or unsafe that a reasonable person would have felt compelled to resign. See Nathaniel v. Westinghouse Hanford Co, 91-SWD-2 (Sec'y Feb. 1, 1995), slip op. at 20; Johnson v. Old Dominion Security, 86-CAA-3, 4, and 5 (Sec'y May 29, 1991), slip op. at 19-22 and n.11 (citing Clark v. March, 665 F.2d 1168, 1174 (D.C. Cir. 1981)). In addition, in order for Complainant to carry the burden of proving constructive discharge, the Complainant must show the presence of "aggravating factors." Id.

   Based on the evidence in the record, I find that Mr. Tracanna's working conditions on the AKOSH Project, prior to his resignation on April 1, 1994 were rendered so unsafe that a reasonable person would have felt compelled to resign. Mr. Coffman, Mr. Adams, and Mr. Tracanna all elected to resign from the AKOSH Project because of safety concerns associated with the decreased AKOSH standards from the NEC standards. There is no evidence to the contrary and the credible testimony of Mr. Coffman and Mr. Tracanna tends to prove that any reasonable person under the same conditions would have felt compelled to resign.

450 U.S. 248, 257 (1981). This standard is further explained in St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993), "[i]t is not enough . . . to disbelieve the employer; the fact finder must believe the plaintiff's explanation of intentional discrimination." (emphasis in original). Thus, Complainant must prove that Respondent intentionally discriminated against him when it failed to provide him with other inspection duties subsequent to his April 1, 1994 resignation, and that Respondent's proffered explanation regarding his April 2, 1994 lay off was a mere pretext.

   Complainant contends that ASIS' failure to rehire him as an electrical inspector throughout the period following his lay off and until he ultimately retained alternative employment at Chugach North constitutes a continuing adverse employment action motivated by his protected activity. I disagree. In cases of failure to hire or rehire, in order to show that adverse employment action occurred, a complainant must establish that he was qualified for the position, that he applied for the position, the employer was otherwise obligated to consider him, that he was rejected, and that after his rejection, the employer hired another individual not protected by the Acts or the position remained vacant. Holtzclaw v. Commonwealth of Kentucky Natural Resources and Environmental Protection Cabinet, 95-CAA-7 (ARB Feb. 13, 1997); McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973).

(Sec'y July 16, 1993) (where complainant was transferred from "surveillance and enforcement" units to the "permits and requirements" unit, the record supported a finding that the transfer constituted adverse action in response to protected activity, as it prevented complainant from performing supervisory duties and field inspection work, which he preferred).

   Moreover, the fact that an employee refuses to accept a retaliatory transfer does not render the retaliatory act of transferring the employee moot. Instead, the employee's refusal to accept the transfer is relevant to the remedy to which the employee may be entitled. If the employee is found to have been constructively discharged, reinstatement would be appropriate and post-resignation back pay would be allowed. 42 U.S.C. § 5851(a)(1); see Delaney v. Mass. Correctional Ind., 90-TSC-2 (Sec'y Mar. 17, 1995), slip op. at 3 (under the Toxic Substance Control Act); Nathaniel v. Westinghouse Hanford Co., 91-SWD-2 (Sec'y Feb. 7, 1995), slip op. at 7 (under the Solid Waste Disposal Act); and Harrison v. Stone and Webster Engineering Group, 93-ERA-44 (Sec'y Aug. 22, 1995), slip op. at 3.

   Complainant contends that ASIS intentionally kept him away from field inspection work by forcing him into alternative assignments effectively preventing him from access to the pipeline or the ability to engage in meaningful communications with government agencies. He further contends, that each of the alleged legitimate offers made during the relevant time period were either illusory offers, i.e., they were offers to Mr. Tracanna so as to create an appearance of nondiscriminatory treatment, or they were offers that were not substantially equivalent positions to his former employment as an electrical inspector. As such, Mr. Tracanna argues that he was not obligated to accept any such offers.

   In addition to Mr. Tracanna's arguments, a significant factor to be considered in the appropriateness of ASIS' various employment offers to Mr. Tracanna is the availability of electrical inspection work during this time period. Interestingly, there is a great deal of evidence demonstrating to the undersigned that a substantial amount of electrical inspection work existed pursuant to Alyeska work orders. ASIS refutes this evidence by arguing that Complainant's failure to provide an actual work order issued by Alyeska and not filled by ASIS tends to show that no such work orders existed. In addition, ASIS directs the undersigned's attention to the fact that Mr. Kingrea and Mr. Biddy had no actual knowledge of the ASIS hiring process and thus, their opinion with respect to Mr. Tracanna's availability and his qualifications is merely speculative. I find both of these arguments wholly unpersuasive.

   Most significantly, Mr. Kingrea and Mr. Biddy testified to the abundance of electrical inspection work at VMT and on the pipeline. Mr. Kingrea impressively testified that there was plenty of work to be done for electrical inspectors, and that although he continued to submit work orders for electrical inspectors, ASIS did not fill these work orders. Mr. Biddy stated that there was so much electrical inspector work that remained undone that Mr. Kingrea

and other employees were getting concerned. In fact, both Mr. Kingrea and Mr. Biddy testified that they believed Mr. Tracanna was qualified for the majority of the work orders which remained outstanding, and that they continued to recommend that ASIS hire Mr. Tracanna for such work.

   There is a conflict of evidence in this regard, as Mr. Carver testified that there were no outstanding work orders from Alyeska. In fact, Mr. Carver stated that all work orders were actively pursued, as that was how ASIS made their money. Having considered the testimony and the demeanor of the aforementioned witnesses, along with the testimony of Mr. Coffman and Mr. Glover who stated that there was more than enough work for them as electrical inspectors, I find that the weight of the evidence suggests that there was ample work for electrical inspectors. The only evidence suggesting that electrical inspection work was not available was the testimony of Mr. Carver; and I find that the facts plainly do not support Mr. Carver's position. In addition, I find that Complainant's inability to produce an actual work order is immaterial, as the credible testimony of the witnesses, specifically of Mr. Kingrea, provided herein sufficiently demonstrates to the undersigned that such work was available and Mr. Tracanna was qualified for it.

   Based on the aforesaid law regarding the factors to be considered in finding a "demotion," and in light of the availability of electrical inspector jobs, I find that all of the positions which ASIS offered to Mr. Tracanna subsequent to April 2, 1994 and through his eventual resignation on August 1, 1995 can and should be considered demotions. Mr. Tracanna deemed the non-electrical inspector positions as less desirable and as a pretext to remove him from the field where he so effectively documented quality and safety concerns. In addition, the electrical inspector positions that ASIS did offer to Mr. Tracanna were for indeterminate durations rather than any permanent full-time positions in Valdez or Anchorage, as Mr. Tracanna had requested. I agree with Mr. Tracanna's contentions.

regardless of the fact that there may not have been any reduction in salary. Mr. Tracanna perceived such positions to be less desirable and below his proven capabilities, and mere attempts to remove him from the position that he was qualified for and preferred. In addition, the two week on/two week off inspector position in Fairbanks and the two week on/two week off terminal electrical inspector position working opposite Larry Coffman were not suitable positions, as they were not full-time electrical inspector positions. Such a part-time position can be considered a demotion, as it forces Mr. Tracanna to perform his duties on a mere half-time basis and he must forego any chance at obtaining a full-time electrical inspector position. A part- time position is less attractive, less prestigious, and inevitably affects Mr. Tracanna's overall compensation. Finally, I am in agreement with Mr. Tracanna that the full-time Baseline Inspector position on the pipeline was not a desirable job, as such a position would have severely jeopardized his personal safety. Were Mr. Tracanna forced to take such a position, it would have necessarily affected the terms and conditions of his employment with ASIS.

   With regards to ASIS' actions, there appears to be an obsessive documentation of the job offers made to Mr. Tracanna by ASIS, and a curious interest taken by various members of upper level management in regards to Mr. Tracanna's employment situation. See CX 39. Mr. Tracanna, on the other hand, presents himself as a credible witness on his own behalf; and almost every witness presented by both Respondent and Complainant testified to Mr. Tracanna's exceptional reputation as an electrical inspector, a hard worker, and as an honest person. TR 531 (Mr. Carver); TR 289 (Mr. Glover); TR 135-36 (Mr. Catalino); TR 253 (Mr. Coffman); TR 234-35 (Mr. Biddy); TR 372 (Mr. Kingrea). In light of these factors, I am sufficiently persuaded that Complainant has proven by a preponderance of evidence that each offer of employment which ASIS made to Mr. Tracanna was a demotion, as they were attempts to remove him from full-time electrical inspector positions, and that ASIS acted in such a way as to retaliate against Mr. Tracanna because of his prior protected activities.

C. The Effect of Mr. Tracanna's August 1, 1995 Resignation

   Mr. Tracanna's August 1, 1995 resignation, which was subsequently confirmed by way of a letter dated August 2, 1995, also falls under the principle of constructive discharge. Maintaining Mr. Tracanna on indeterminate lay off placed him in a continuous employment status inferior to that of his full-time electrical inspector position. Because Mr. Tracanna was not assigned to full-time electrical inspector positions that he was qualified for and which were available, ASIS' continued attempts to offer him inferior jobs rendered his conditions at ASIS so difficult, unpleasant, and unattractive, a reasonable person would have felt compelled to resign and obtain more appropriate employment elsewhere. There should be no expectation that Mr. Tracanna wait an interminable period for ASIS to offer him a suitable position.

   The evidence in the record establishes that Mr. Tracanna has met his burden in proving by a preponderance of evidence that ASIS discriminated against him throughout the period between his initial lay off on April 2, 1994 and his ultimate resignation on August 1, 1995. ASIS' proffered legitimate reasons for its conduct of placing Mr. Tracanna on lay off status immediately subsequent to his resignation from the AKOSH Project and their continued attempts to offer him inferior jobs that would have affected the compensation, terms,

and privileges of his employment with ASIS, are not worthy of credence and are a pretext for the bias they held against him for his prior whistleblowing activities and issuance of two NCR's. I find and conclude that such acts constitute a continuous adverse action within the meaning of the Acts.

IV. DAMAGES

   The Acts provide that upon finding a violation, the Secretary shall order the respondent to take affirmative action to abate the violation and reinstate the complainant to his former position together with the compensation (including back pay), terms, conditions, and privileges of his employment. 24 C.F.R. § 24.7(c)(1). Compensatory damages are also available, and a complainant may recover all costs and expenses reasonably incurred in bringing the complaint. Here, Complainant has requested an award of back pay with interest, lost benefits, and attorneys' fees and costs.

A. Back pay

   1. Calculation of Complainant's Back Pay Award.

   The "goal of back pay is to make the victim of discrimination whole and restore him to the position that he would have occupied in the absence of the unlawful discrimination." Blackburn v. Martin, 982 F.2d 125, 129 (4th Cir. 1992). Thus, an award of back pay runs from the date of termination until the date that the complainant was able to find suitable alternative employment, but such amount must be offset by any amount earned in a replacement job. Johnson v. Old Dominion Security, 86-CAA-3, 4, and 5 (Sec'y May 29, 1991).

   Because Complainant was constructively discharged on April 2, 1994; was subjected to adverse employment action until he was again constructively discharged on August 1, 1995; and finally retained a suitable alternative employment position at Chugach North on August 12, 1996, Complainant is entitled to back pay from April 2, 1994 through August 12, 1996, less any amount that he earned during the interim. Derr v. Gulf Oil Corp., 796 F.2d 340, 343 (10th Cir. 1986).

   Complainant has provided the undersigned with two alternative methods in calculating his wage loss throughout such period. The first is based on a Formula Method of which incorporates various assumptions: that Mr. Tracanna would work a fifty (50) week year, with 25 pay periods; that Mr. Tracanna would work a sixty (60) hour work week, wherein forty (40) hours would be considered standard working time and twenty (20) hours would be considered overtime; and that Mr. Tracanna would have been paid $26.00/hour for forty hours of straight time and $39.00/hour for overtime before April 1, 1995; and that because of across-the-

board salary decreases, Mr. Tracanna would have been paid $24.00/hour of straight time and $36.00/hour of overtime after April 1, 1995. See Claimant's Post-Hearing Brief, pps. 25-26. The second method which Complainant proposes is a method based on the earnings of a Similarly Situated Employee - Walter Glover.

   I find that the more appropriate method to use herein is the latter method. The Formula Method does not take into consideration the possibility of personal time, spontaneous work-load increases or decreases, or the general level of activity for inspectors during the relevant time period. If the Formula Method were the more accurate record, then Mr. Glover's pay records would evidence a schedule closer to that of the assumptions which Complainant proposes in his demonstrative exhibit 95 (50 work weeks per year/60 hour work week). However, because there is no correlation between the hours assumed in the Formula Method and the actual hours that Mr. Glover worked, I cannot award Complainant a back pay remedy that, on its face, fails to reflect what he would have made as an electrical inspector had ASIS not discriminated against him.

Tracanna is entitled to an award of back pay as follows.

1994, and the fact that Complainant rejected each such offer. In wholesale fashion, ASIS argues that Complainant's mere rejection prevents him from recovering back pay since he made no effort to mitigate his damages, and thus "cannot recover for any item or damages which could have been avoided." Respondent's Post-Hearing Brief, p. 26.

   However, the law is not as simple as ASIS claims it to be. Rather, the law states that once the complainant establishes the gross amount of back pay due, the burden shifts to the respondent to prove facts that the complainant failed to mitigate his damages. In order for the respondent to show that the complainant has failed to do so, the respondent must prove that it made an unconditional offer to the complainant of reinstatement to his former position, or of substantially equivalent employment. Ford Motor Co. v. EEOC, 458 U.S. 219 (1982).

   Thus, ASIS must prove that their various offers of employment of the QCE position, the two week on/two week off Fairbanks position, the electrical quality specialist position, the two week on/two week off terminal electrical inspector position opposite Larry Coffman, and the baseline inspector position were either reinstatements to "his former position" or "of substantially equivalent employment." In addition, the law states that a complainant is not required to work outside of his field of training; he need not relocate in order to mitigate damages; he need not accept a demotion; nor must he make any extraordinary efforts to find interim employment. NLRB v. Madison Currier, Inc., 472 F.2d 1307, 1320-21 (D.C. Cir. 1972) (employee need not "seek employment which is not consonant with his particular skills, background, and experience" or "which involves conditions that are substantially more onerous than his previous position"); Wonder Markets, Inc., 236 N.L.R.B. 787, (1978) (offer of reinstatement ineffective when discharged employee offered a different job, through former position still existed); Good Foods Manufacturing & Processing Corp., 195 N.L.R.B. 418, 419 (1972) (offer of reinstatement ineffective because job offered had different conditions of employment and benefits).

       a. QCE Position

   In March and April of 1994, Mr. Tracanna was offered the QCE position in the projects department in Anchorage. It appears that Mr. Swink and Mr. Tracanna engaged in multiple discussions regarding this position, specifically they discussed the job requirements, a proposed salary of $75,000, and Mr. Tracanna was sent a copy of the job description. The position, however, had nothing to do with electrical inspection, was not connected with any projects at VMT, and was not a field inspector position. Mr. Swink testified that the position involved the reviewing of engineering drawings for accuracy and completeness; Mr. Tracanna recalled that the position had something to do with fiber optics, and believed such position to be a demotion. Based on the fact that the QCE Position was entirely outside of Mr. Tracanna's field of expertise, I find that such position is not a reinstatement to his former position, nor can it be considered substantially equivalent employment.

       b. Two Week On/Two Week Off Fairbanks Position

   Although this position was an electrical inspector position, it was beyond the geographical bounds which Mr. Tracanna was required to go in order to obtain suitable employment. Mr. Tracanna wanted to remain in Valdez or Anchorage and the Fairbanks position would have required him to relocate. As such, Mr. Tracanna was under no obligation to take this job so as to mitigate his damages.

       c. Electrical Quality Specialist Position

   This was a full-time position doing electrical inspection work inside Alyeska's office buildings in Anchorage. Mr. Tracanna believed such position to be a demotion, as his skills and expertise were superior to those of an employee who would have regularly taken the position. This position was outside of Mr. Tracanna's expertise as an electrical inspector, and thus I find that it is not a substantially equivalent offer of employment.

       d. Two Week On/Two Week Off Terminal Inspector Position

   With respect to this terminal inspector position, I find that Mr. Tracanna was under an obligation to accept such position, as it does meet with the standards of a substantially equivalent offer of employment. It was within his area of expertise, and although only a half-time position, it supports an income that is reasonably commensurate with that of a full-time position. The acceptance of such employment would have reasonably minimized the damages which ASIS incurred by not offering him a full-time position.

   As there was testimony that the workload would have sustained a 60-70 hour workweek, I find it reasonable to assign an average of 65 hours of work every week, delineating 40 hours of standard time and 25 hours of overtime each week. As there was testimony that this position would have lasted three months, the actual time worked would be 6 weeks. Consequently, Mr. Tracanna would have worked a total of 240 standard hours (40 hours x 6 weeks) and 150 overtime hours (25 hours x 6). This position was offered to Mr. Tracanna prior to the across-the-board salary decreases, thus he would have been paid his normal rate of pay, $26.00/hour standard time and $39.00/hour overtime. As Mr. Tracanna was under an obligation to accept this position so as to minimize his damages, his back pay award is reduced by $12,090.00 (240 standard hours x $26 plus 150 overtime hours x $39).

       e. Baseline Inspector Position

   I find that Mr. Tracanna was under no obligation to take this baseline inspector position. The unusual circumstances surrounding the personal safety of the inspectors working out in remote areas of the pipeline are enough to demonstrate to the undersigned that Mr. Tracanna had good reason to reject such offer of employment. Mr. Tracanna need not make any extraordinary effort or compromise, as in the case of his personal safety, so as to mitigate his damages. Thus, Mr. Tracanna's refusal to accept such position did not amount to a failure to mitigate his damages.

   Accordingly, I find that Complainant is entitled to an award of pack pay from April 2, 1994, the date of his constructive termination, through August 12, 1996, the date in which he obtained suitable alternative employment, in the amount of $146,967.00. However, such amount is offset by his interim earnings in the amount of $35,811.00 and his failure to mitigate damages in the amount of $12,090.00. Complainant's total back pay award amounts to $99,066.00.

B. Compensatory Damages

   1. Damages related to medical costs.

   The purpose of compensatory damages is to make the complainant "whole." Blackburn v. Martin, 982 F.2d 125 (4th Cir. 1992). Fringe benefits are an important part of an employee's overall compensation package, and therefore an employee cannot be made whole without receiving compensation for the loss of these benefits. "Accordingly, a damage award . . . should include those fringe benefits which the employee would have actually received had his employment not been wrongfully terminated. Galindo v. Stoody Co., 793 F.2d 1502, 1517 (9th Cir. 1986); see also Crow v. Noble Roman's, Inc., 95-CAA-8 (Sec'y Feb. 26, 1996) (Respondent ordered to pay as compensatory damages any reasonable medical costs that would have been covered under the Respondent's health insurance coverage).

   Throughout his employ with ASIS, Mr. Tracanna was provided with employment benefits in form of medical coverage and health insurance. In light of the aforesaid legal principle, ASIS shall pay Mr. Tracanna any out of pocket medical expenses he incurred that would have been paid for by the health insurance available to him as an ASIS employee. See Doyle v. Hydro Nuclear Services, 89-ERA-22 @ 6 (ARB Sept. 6, 1996). As Mr. Tracanna suffered a heart attack on August 12, 1996, he is entitled to reimbursement for the costs associated with such treatment. Thus, Mr. Tracanna is entitled to recover $38,662.49 in medical expenses, an amount that would have been covered had he not been subjected to discrimination.

   2. Damages related to emotional distress.

   I note for purposes of the record that at the conclusion of the formal hearing, Counsel for both parties stated that there would be additional correspondence and/or post-hearing discovery with respect to the emotional distress claim. Neither party has subsequently made submission with respect to this issue, nor did either party mention or argue such issue in their post-hearing briefs. As such, I find that the issue of Complainant's mental distress claim is deemed abandoned.

C. Attorneys' Fees and Costs

   Pursuant to the statutes enumerated herein and the applicable regulations thereunder, Complainant is entitled to payment of costs and expenses, including attorneys' fees, reasonably incurred in bringing this complaint.

1. ASIS shall pay Complainant back pay in the amount of $99,066.00.

2. Consistent with this Recommended Decision and Order, ASIS shall pay Complainant back pay plus interest at the rate specified in 26 U.S.C. § 6621 (1988).

3. ASIS shall pay Complainant compensatory damages for out-of-pocket medical costs in the amount of $38,662.49. ASIS is entitled to receive credit for all medical expenses reimbursed by its insurance.

4. (a) Counsel for Complainant shall file a Petition for Fees and Costs within 30 days after the filing of the Recommended Decision and Order for all legal services rendered with service on Counsel for Respondent. Such submission shall be on a line item basis and shall separately itemize the time billed for each service rendered and costs incurred. Each such item shall be separately numbered.

    (b) Respondent may file objections, if any, to said application for fees and costs within 15 days of receipt, but all objections to said Counsel's petition shall be on a line item basis using Complainant's numbering system, and any item not objected to in such manner and within such time required shall be deemed acquiesced in by Respondent.

    (c) Within 10 days after receipt of any such objections from Respondent, Counsel for Complainant may file a response thereto. Such submission shall be in the form of a line item response. Any objections not responded to in such manner and within such time will be deemed acquiesced in by Counsel for Complainant.

       HENRY B. LASKY
       Administrative Law Judge

Dated: September 18, 1998
San Francisco, California

NOTICE: This Recommended Decision and Order will automatically become the final order of the Secretary unless, pursuant to 29 C.F.R. § 24.8, a petition for review is timely filed with the Administrative Review Board, United States Department of labor, Room S-4309, Frances Perkins Building, 200 Constitution Avenue, N.W., Washington, D.C. 20210. Such petition for review must be received by the Administrative Review Board within ten business days of the date of this Recommended Decision and Order, and shall be served on all parties and on the Chief Administrative Law Judge. See 29 C.F.R. §§ 24.8 and 24.9, as amended by 63 Fed. Reg. 6614 (1998).