U.S. Department of Labor
Office of Administrative Law Judges
304A U.S. Post Office and Courthouse
Cincinnati, Ohio 45202
(513) 684-3252
DATE: April 20, 1987
CASE NO. 85-WPC-3
IN THE MATTER OF
DONALD REXROAT
COMPLAINANT
v.
CITY OF NEW ALBANY, INDIANA
RESPONDENT
APPEARANCES:
Stanley E. Robison, Jr., Esq.
For the Complainant
Donald R. Forrest, Esq.
For the Respondent
BEFORE:
Richard D. Mills
Administrative Law Judge
RECOMMENDED DECISION AND ORDER AWARDING
COMPENSATORY DAMAGES, COSTS AND ATTORNEY
FEES
On April 17, 1986, the Secretary of Labor adopted in its
entirety the November 15, 1985 Amended Recommended Decision and
Order. Said Order granted Complainant, Donald Rexroat,
reinstatement to his former position with Respondent, City of New
Albany, Indiana, with full back pay and interest, fringe
benefits, and with reimbursement for all his costs and expenses
including reasonable attorney fees.
On June 2, 1986, the Secretary remanded this matter to the
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undersigned for an initial determination as to Complainant's
compensatory damages, costs and attorney fees.
On October 8, 1986, the Secretary denied Respondent's Motion
for a Stay of the April 17, 1986 Final Order.
On February 9, 1987 and March 27, 1987, this Court received
Stipulations (copies of which are attached hereto and made a part
hereof and marked Joint Exhibit A and B) whereby the parties
agreed to all matters in controversy except for two issues:
1. Whether unemployment compensation paid by a state agency
to Complainant should be deducted from his compensatory damages;
and,
2. Whether Complainant mitigated his damages.
A formal hearing in this case was held in Louisville,
Kentucky, on March 13, 1987. Each of the parties was afforded
full opportunity to present evidence and argument at the hearing
as provided in the Act and the Regulations issued thereunder.
The findings and conclusions which follow are based upon my
observation of the appearance and the demeanor of the witnesses
who testified at the hearing, and upon a careful analysis of the
entire record in light of the arguments of the parties,
applicable statutory provisions, regulations, and pertinent case
law.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
The first issue unresolved is whether the sum of $2,574.00
received by Complainant as unemployment compensation benefits
should be deducted from the amount owed by Respondent as
mitigation of damages. In the event the Employer is given credit
for these moneys received by Complainant, a windfall will result
to the City of New Albany since taxes normally paid into the
state unemployment fund were not paid after the discharge of Mr.
Rexroat.
The U.S. Supreme Court held that the National Labor
Relations Board was correct in refusing to deduct from back-pay
awards sums paid to discriminatorily discharged employees as
unemployment compensation by a state agency. National Labor
Relations Board v. Gullett Gin Co., 34 U.S. 361, 71 S.Ct. 337,
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339 (1951).
I therefore find that the unemployment benefits paid
Complainant are not earnings and are moneys received from a
collateral source and therefore they are not deductible.
The second and final contested issue relates to mitigation
of damages by Complainant.
The Employer has the burden of proving that Donald Rexroat
has failed to mitigate his damages.
Complainant testified on deposition and at the hearing
regarding his activities pertaining to his efforts to seek
employment from the date of his discharge in January, 1985. He
applied for jobs at the Metropolitan Sewer District of
Louisville, Kentucky; Louisville Free Public Library; Colgate
Palmolive Corp.; Pillsbury Company; The Kroger Co.; Revlon Eye
Care Corp.; the City of Jeffersonville Treatment Plant and the
City of Hunningburg. (Tr. 36-42). In addition, Mr. Rexroat
signed up at the Indiana State Unemployment Office and he
received benefits upon satisfying his state's requirements for
seeking employment.
I found Mr. Rexroat an extremely honest, forthright and
highly credible witness.
The Respondent-contends that Mr. Rexroat was "just riding
his case out waiting to collect on his claim with the Labor
Department." (Tr. 8).
I find that the testimony of Respondent's subpoenaed
witnesses, Lawrence W. James, Dale W. Helmerich, Jo Ann Engleman
and Glenn R. Farnsley failed to discredit Mr. Rexroat's
testimony. Mr. James of Jeffersonville remembered speaking to
Complainant on two occasions and received a resume from him.
Mr. Helmerich, the Mayor of Hunningburg admitted that he could
not recall all of his numerous daily phone calls. In particular,
be could not remember the call from Mr. Robison, Claimant's
counsel in April of 1985. (Tr. 26 and 44). He did not
unequivocally deny receiving a job inquiry call from Mr. Rexroat.
The Mayor testified, "Could be, I don't recall that." (Tr. 33).
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Mrs. Engleman, the Personnel Administrator for the Pillsbury
Company, admitted that applicants' resumes are only retained for
six months and that it was possible that Mr. Rexroat's resume
had been submitted to her company even though she had no record
of his application for employment. (Tr. 65).
Likewise I find the testimony of Mr. Farnsley of the Indiana
State Job Service fails to discredit Mr. Rexroat. Mr. Farnsley
admitted that their records are purged after eleven months and
therefore Mr. Rexroat could have applied for jobs through his
agency at any time prior to that eleven month period (April of
1986). (Tr. 58).
I find that Complainant has by his earnest effort adequately
sought employment since his discharge in January, 1985. The
Respondent has failed to prove that Donald Rexroat failed to
mitigate his damages.
I find the amounts set forward in the Stipulation of the
parties to be correct and reasonable as to the damages, costs and
attorney fees incurred from the date of Complainant's discharge
in January, 1985 up to the date of the Stipulations, February 6,
1987 and March 27, 1987.
RECOMMENDED ORDER
Respondent, City of New Albany, shall pay to Complainant,
Donald Rexroat for the period January 1, 1985 to March 27,
1987, the following:
1. Lost Wages in the sum of $31,345.04 ($32,305.20 less a
credit of $960.16 which Employer paid as accrued vacation).
2. Interest in the sum of ,688.29.
3. Retirement Fund Contribution, in the sum of $2,381.66
(Complainant waives interest).
4. Health insurance in the sum of $2,272.00.
5. Holiday pay in the sum of $865.92.
Respondent has a continuing liability for damages until the
date Complainant is reinstated or refuses reinstatement with the
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City of New Albany.
Respondent shall pay to Stanley E. Robison, Jr., Esquire,
the agreed sum of $5,701.29 for attorney's fees and expenses.