DATE: January 18, 1996
CASE NO. 94-ERA-9
IN THE MATTER OF
MAGED GABALLA
PLAINTIFF,
v.
THE ATLANTIC GROUP, INC.
RESPONDENT.
FINAL DECISION AND ORDER
Complainant Maged Gaballa filed a complaint against Arizona
Public Service (APS) and The Atlantic Group (TAG) alleging they
discriminated against him for raising safety questions about
installation of certain materials at the Palo Verde Nuclear
Generating Station (PVNGS). Gaballa and APS settled all
outstanding issues between them, and TAG and Gaballa settled all
issues related to Gaballa's employment at PVNGS. The settlement
explicitly reserved Gaballa's right to pursue his claim in this
action that TAG blacklisted or otherwise discriminated against
him with employers other than APS. Gaballa v. Arizona Public
Service, Case No. 94-ERA-9, Sec. Ord. Jul. 28, 1994,
slip op. at 1.
The Administrative Law Judge (ALJ) issued a Recommended
Decision and Order (R. D. & O.) finding that TAG discriminated
against Gaballa by giving an unfavorable reference to a reference
checking company. He recommended that the Secretary order TAG to
expunge Gaballa's record, obtain his permission before releasing
any information about him, and pay Gaballa $75,000 in
compensatory damages for emotional distress. TAG excepted to the
R. D. & O.
Background
Gaballa worked for APS as a contract engineer supplied by
TAG from March to December 1993. R. D. & O. Findings of Fact,
¶ 3. After raising a safety concern, Gaballa reported to
APS and
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TAG managers that he felt he had been discriminated against.
R. D. & O. ¶ 9. Concerned that TAG and APS might be
releasing damaging information about him, Gaballa employed
Documented Reference Check (DRC) to determine the type of
information APS and TAG would make available about him to
prospective employers. R. D. & O. ¶ 11.
DRC contacted Vance Pettus, the TAG site manager at PVNGS.
R. D. & O. ¶ 11. Among other things, Pettus told DRC:
PETTUS: There's been a little bit of internal problems as
far as between him and maybe the supervisor or people that
he worked for there [at APS]. There's been a couple of time
that we've had talks about how he felt like he was feeling
discriminated against.
DRC: Discriminated?
PETTUS: He wasn't discriminated against.
DRC: How about with peers? Does he work well with peers?
PETTUS: Well again, that was part of the problem. In other
words, that was with some of his peers and supervision.
DRC: Did that create teamwork problems?
PETTUS: At times.
C- (Complainant's exhibit) 6, p.2.
The ALJ found Gaballa developed "permanent [mental and emotional]
disorders due to the discrimination by TAG." R. D. & O. at 13.
He concluded that the facts here justified a "substantial award"
of $75,000. Id.
Discussion
I agree with the ALJ that TAG unlawfully discriminated
against Gaballa when, in providing information concerning his
employment to an outside party, it referred to Gaballa's
complaint about discrimination. Discriminatory referencing
violates the ERA regardless of the recipient of the information.
As I held in Earwood v. Dart Container Corp., Case No. 93-
STA-16, Sec. Dec. Dec. 7, 1994, slip op. at 5, the risk that
improper information may be provided to prospective employers or
placed in records maintained by outside organizations like
reference checking companies, requires a "prophylactic rule
prohibiting improper references to an employee's protected
activity whether or not the employee has suffered damages or loss
of employment opportunities as a result."
TAG attacks the ALJ's allocation of the burdens of proof and
burdens of production and asserts that Gaballa did not carry his
burden of proving that Gaballa's protected activity motivated the
derogatory reference. Where there is direct evidence of
discrimination, it is not necessary to engage in the familiar
Dartey v. Zack Co. allocation of burdens of proof and
burdens of
[PAGE 3]
production applicable in cases limited to circumstantial
evidence. Compare Dartey v. Zack Co. of Chicago, Case No.
82-ERA-2, Sec. Dec. Aug 25, 1983, slip op. at 7-9, with Blake
v. Hatfield Electric Co., Case No. 87-ERA-4, Sec. Dec. Jan.
22, 1992, slip op. at 5-6 (supervisor's negative comment about
contacts with NRC is direct evidence of discrimination); and
Lederhaus v. Paschen, Case No. 91-ERA-13, Sec. Dec. Oct.
26, 1992, slip op. at 5, and cases discussed therein (comments by
a manager or others involved in employment decision may
constitute direct evidence of discrimination). Here, the
evidence of discrimination and the discriminatory act are the
same - - Pettus' comments about Gaballa's belief he had been
discriminated against and the resulting problems with his
supervisors and co-workers. See Rutherford v. American Bank
of Commerce, 565 F.2d 1162, 1164 (10th Cir. 1977) (advising
prospective employer that former employee filed discrimination
complaint is prohibited retaliation).
The ALJ found that Gaballa suffered "emotional distress"
caused by the discriminatory reference Pettus gave to DRC.
R. D. & O. at 13-14. He recommended an award of $75,000 in
compensation for these damages. Id. at 14. TAG excepts
to that recommendation, arguing that the ALJ did not distinguish
between emotional distress caused by the response of APS and TAG
to Gaballa's safety complaint in June 1993, and distress caused
by the discriminatory reference in October. Gaballa's claims
against APS and TAG for any acts related to his employment at
PVNGS were settled. TAG argues that the award for compensatory
damages should be reduced accordingly. TAG also urges reduction
of the award as inconsistent with other decisions by the
Secretary awarding damages for mental suffering.
The record shows Gaballa suffered mental and emotional
distress caused both by the reaction of APS and TAG to his safety
complaint and the Pettus discriminatory reference. Gaballa
himself reported, in some of the materials he completed for a
psychological evaluation by Dr. Edwin Carter, that:
[a]fter the harassment [related to his safety complaint]
started, I lost my sense of security. . . . I was treated
like a child, humiliated. I was scared that my engineering
career . . . is ruined. . . . I started to lose sleep and
my eating habits changed. I experienced shortness of breath
and heaviness of the chest. . . . I felt lonely and lost
confidence in a fair and just world. Regularly I was crying
and praying to God to help me clear my name. I was very
worried about the future of my family. I started to have
swinging moods. My relationship with my wife suffered. I
lost interest in sex . . . . I was very irritable and I
experienced nightmares. . . . Because of the continuous
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pressure that was applied on me, I visited my doctor [who] told
me that all the symptoms I experienced are due to mental
pressure.
C-21. Gaballa then continued "[w]hen I found that TAG gave me a
bad reference, I collapsed and broke down in tears. I was
certain my engineering career came to an end. I thought of
committing suicide . . . . I felt my reputation is ruined. I
was depressed and sad all the time." Id. On his Adult
Social Case History, C-22, in answer to the question "[w]hen did
the problem first develop?," Gaballa wrote "at the beginning of
the harassment by APS and TAG."
Dr. Carter testified that the confrontation with APS over
Gaballa's safety complaint and the failure of TAG to support him
initiated the process of emotional distress, T. (Transcript of
hearing) 249, leading him to view himself as a "pariah." T. 250.
I conclude that part of the ALJ's award for mental and emotional
suffering represents a recovery for damages already compensated
for by the settlement of Gaballa's other claims.
In addition, an important standard for assessing whether an
award for compensatory damages is reasonable is "whether the
award is roughly comparable to awards made in similar cases."
EEOC v. AIC Security Investigations, Ltd., 55 F.3d 1276,
1285 (7th Cir. 1995); Lederhaus v. Paschen, slip op. at
13. Thus, for example, the Secretary has awarded compensatory
damages in the following amounts for mental and emotional
suffering or distress: Smith v. Littenberg, Case No. 92-
ERA-52, Sec. Dec. Sep. 9, 1995, slip op. at 7, appeal docketed
Littenberg v. U.S. Dep't of Labor, No. 95-70725 (9th Cir.
Sept. 21, 1995) ($10,000 for mental and emotional stress for
discharge); DeFord v. TVA, Case No. 81-ERA-1, Sec. Dec.
Apr. 30, 1984, slip op. at 4 ($10,000 for emotional distress and
damage to reputation for demotion of Complainant); McCuistion
v. TVA, Case No. 89-ERA-6, Sec. Dec. Nov. 13, 1991, slip op.
at 21-22 ($10,000 for emotional distress for harassment,
blacklisting and discharge of Complainant). In Marcus v. TVA,
Case No. 92-TSC-5, Sec. Dec. Jul. 3, 1995, slip op. at 10,
the Secretary adopted the ALJ's recommendation to award $50,000
in compensatory damages. The award compensated the Complainant
for mental anguish and depression, aggressive and intimidating
treatment, and potential damage to his reputation. ALJ
Recommended Decision and Order Dec. 3, 1992, slip op. at 29-30.
The ALJ did not state separately the amount of the award for each
element of damages.
Taking into account prior awards in comparable cases, the
fact that Gaballa has already received compensation through the
settlement for part of the mental and emotional suffering caused
by TAG, and the fact that appropriate deference is due to the ALJ
who heard and evaluated the witnesses' testimony, I order TAG to
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pay $25,000 in compensatory damages to Gaballa for mental and
emotional suffering. Finally, because Gaballa has successfully
proven his claim here, my Interim Order of Dec. 7,1995 directing
payment of attorney's fees and costs as itemized in that order
shall become final. Gaballa's attorney's may submit a
supplemental itemized petition for attorney's fees and costs that
were not covered by that interim order, within 30 days of the date of this order. TAG shall have 45 days from the date of this
order to respond.
SO ORDERED.
ROBERT B. REICH
Secretary of Labor
Washington, D.C.
