T. 455; CX 81. Jones attempted to obtain a loan to purchase the appliance
repair business but was unsuccessful because of his poor credit rating. T. 455. In
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addition, he has been unable to obtain loans to allow him to purchase and sell new appliances.
Id.
Injury to a person's credit standing is a basis for awarding compensatory
damages in employment discrimination cases. See Migis v. Pearle Vision, Inc., 135 F.3d
1041, 1053 (5th Cir. 1998) (noting that under EEOC guidelines, such injury is compensable in
Title VII cases). As EG&G acknowledges, Jones's credit reports show many defaults in
payments about one year after his discharge from EG&G. Resp. Br. at 45; CX 81. Although
EG&G found evidence of two credit card debts charged off as bad debt prior to the discharge,
Resp. Br. at 45, there are far more similar entries in Jones's credit report after the discharge. We
find that there was a very significant deterioration in Jones's credit report after the discharge.
The deterioration in Jones's credit rating, coupled with Jones's testimony
regarding his lack of success in obtaining loans for his business, usually would be sufficient
evidence to merit compensation for injury to his credit standing. In this case, however, the loans
that Jones was unable to obtain were for the appliance repair business. The back pay we have
awarded will compensate Jones fully for the years when he was unable either to take a salary or
earn any profit from the appliance business. Consequently, we will not make a separate and
additional award for injury to credit standing in this case. We will, however, consider the injury
to credit standing in awarding damages for pain and suffering.
3. Pain and Suffering
EG&G attacks the $50,000 award for pain and suffering on the ground that
Jones did not provide proof of the existence or magnitude of his emotional distress. Resp. Br.
at 46. The company points out that Jones's testimony was not corroborated by that of family
members or a mental health expert. Id. at 47.
Although the testimony of health professionals may strengthen the case
for entitlement to compensatory damages, it is not required. Busche v. Burkee, 649 F.2d
509, 519 n.12 (7th Cir. 1981), cert. denied, Burkee v. Busche, 454 U.S. 897 (1981);
Thomas v. Arizona Public Service Co., Case No. 89-ERA-19, Sec. Final Dec. and Ord., Sept.
17, 1993, slip op. at 27-28. All that is required is that the complainant "show that he
experienced mental and emotional distress and that the wrongful discharge caused the mental
and emotional distress." Blackburn v. Martin, 982 F.2d 125, 131 (4th Cir. 1992),
citing Carey v. Piphus, 435 U.S. 247, 263-64 and n.20 (1978).
Nor is testimony from family members always necessary for entitlement
to compensatory damages. In another case involving a complainant's loss of a job in his long
standing profession, the Board ordered substantial compensatory damages based solely upon the
testimony of the complainant concerning his embarrassment about seeking a new job, his
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emotional turmoil, and his panicked response to being unable to pay his debts. Creekmore,
supra, slip op. at 24-25; see also Crow v. Noble Roman's, Inc., Case No.
95-CAA-08, Sec. Final Dec. and Ord., slip op. at 4 (complainant's testimony sufficient to
establish entitlement to compensatory damages).
Jones described his emotional reaction to the loss of his job and income
from EG&G:
The toughest part of being fired for me is not being able to work in the
career field that I chose. As long as this cloud -- I feel a cloud is hanging
over me -- it's impossible for me to do that. I've had to do a job basically
repairing used appliances, trying to make ends meet, trying to provide
food.
T. 458. He also testified that in the aftermath of his discharge, he experienced significant
embarrassment when his neighbors witnessed the repossession of his car from his home and
when customers saw the repossession of his truck from the appliance repair shop. T. 454.
Another consequence of his discharge was loss of medical coverage, which
prevented his wife from having a planned operation to restore hearing in one ear that was totally
deaf. The operation was necessary because of deterioration in the hearing in her
"good" ear. T. 458-59. In addition, Jones was not able to continue providing
financial support to two stepdaughters who were attending college. T. 459. Here we also
consider the evidence of injury to Jones's credit standing. Prior to the discharge, he always was
able to obtain loans; afterward, he was not. T. 457.
The ALJ found that "[Jones's] testimony as to the emotional distress
and the effects of the public circumstances surrounding these events, and his inability to support
his family's needs is sufficient to establish the magnitude of the injuries [ ] clearly resulting from
the discriminatory discharge, [and] supportive of the amount he seeks for this category of
compensatory damages." RD at 140. The $50,000 award in this case is comparable to
awards in similar cases19 and we find
that the record supports it.
D. Exemplary Damages
Jones sought exemplary damages of $150,000 under the TSCA "to
send a clear message to EG&G that retaliation against whistleblowers, particularly in the context
of dangerous chemical weapons incineration, is intolerable." RD at 140. The ALJ
awarded one dollar in exemplary damages, finding that it is "an adequate deterrent and
message as to future misconduct at a chemical weapons incinerator." Id. Jones
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objects that "[a] one dollar pecuniary award is simply not adequate either to punish EG&G
or deter it from its illegal activities." Comp. Reply Br. at 44.
The Secretary has found that awards of exemplary damages "serve
in punishment for wanton or reckless conduct to deter such conduct in the future."
Johnson v. Old Dominion Security, Case Nos. 86-CAA-3, 4, 5, Sec. Final Dec. and
Order, May 29, 1991, slip op. at 29. According to the Restatement (Second) of Torts §
908 (1979), the relevant inquiry is whether the wrongdoer demonstrated reckless or callous
indifference to the legally protected rights of others, and whether the wrongdoer engaged in
conscious action in deliberate disregard of those rights. As the Secretary has explained, the
requisite "state of mind" is comprised both of intent and the resolve actually to take
action to effect harm. Johnson, slip op. at 29.
In Johnson, the respondent discharged complainants who had
complained of serious health problems because of exposure to PCBs on their jobs. The
Secretary found that the respondent "manifested indifference to the public health purposes
of the TSCA in its treatment of Complainants," who were treated as
"expendable." Johnson, slip op. at 29. But the Secretary also found that the
respondent's "intent and actions" did not meet the threshold for an exemplary
damages award. Id. at 30.20
In this case, EG&G demonstrated indifference to the steps taken by Jones,
as Safety Manager, to ensure compliance with environmental safety and regulations. We agree
with the Secretary's finding in Johnson that indifference to the purposes of the
environmental acts is not sufficient to constitute the requisite state of mind for an award of
exemplary damages. Therefore, we do not accept the ALJ's recommended award of one dollar
in exemplary damages.
E. Attorney Fees and Costs
The ALJ shall afford Jones the opportunity to submit a detailed request
for payment of attorney fees and costs and shall afford EG&G the opportunity to respond to the
petition. See RD at 140-41. The ALJ thereafter shall issue a supplemental
recommended decision setting forth the amount of attorney fees and costs that EG&G shall pay.
CONCLUSION
We find that EG&G violated the employee protection provisions of the
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three environmental acts when it counseled and discharged Jones. It is ORDERED
that EG&G:
1. Reinstate Jones to his former position as Safety Manager at the Tooele
Disposal Facility with identical wages, benefits, and conditions of employment.
2. Pay Jones back pay from the date of termination to the date of
reinstatement, or declination of a bona fide offer of reinstatement. Any severance
payments EG&G made to Jones shall be deducted from the amount of back pay owed. EG&G
shall pay prejudgment interest on the back pay award at the interest rate set forth in 26 U.S.C.
§6621.
3. Pay Jones compensatory damages of $50,000.
It is further ORDERED that the ALJ issue a supplemental
recommended decision on attorney fees and costs.21
SO ORDERED.
PAUL
GREENBERG
Member
CYNTHIA
L. ATTWOOD
Acting Member