On one
occasion, they made fun of Complainant's underwear, saying that he was wearing women's
bikini underwear. Weststar's industrial hygiene technician, Bill Ross, also participated in the
harassment, telling fellow employees to "watch out for Ferguson, he has a lawyer."
Complainant spoke with Mr. Ness about the
harassment on more than one occasion, but to no avail. Mr. Ness did not take Complainant's
grievances seriously; he assumed that the harassment directed at Complainant was mere
horseplay, typical of that commonly engaged in at the work site. He told the employees
involved to "cut it out," but did not take any further action.
Complainant's anxiety at work intensified when
several pieces of scaffolding fell and came close to hitting him as the containment was being
taken down. After Complainant experienced more than one near-miss incident, he became
suspicious that coworkers were purposefully attempting to scare him or cause him bodily harm.
Complainant's suspicions were heightened when the grandson of the owner of the company
approached Complainant and cryptically warned him to "watch out for falling nuts."
Complainant found this warning particularly disturbing because he had noticed during one of the
aforementioned incidents that some nuts had fallen along with the scaffolding.
On January 16, 1998, Complainant witnessed a
large piece of aluminum scaffolding fall from the containment and damage the roof of a nearby
building. Complainant informed Mr. Ness of the incident, and Mr. Ness sent him up into the
[Page 5] crane to find out why the object had fallen. While up
in the crane, Complainant encountered Mr. Ness's stepbrother Charles Bowman who reacted
angrily to Complainant's query as to who was responsible for the fallen scaffolding. In his anger,
Mr. Bowman cursed at Complainant, called him a "narc," and threatened him with
the Stanley retractable blade razor knife that he had been using in his work. When Complainant
returned to the ground and told Mr. Ness about the incident, Mr. Ness attempted to resolve the
conflict by having Complainant and Mr. Bowman shake hands.
Still scared and upset from the knife incident,
Complainant collected his paycheck and went home. In his distress, Complainant went to see
Mr. Farmer. At Mr. Farmer's recommendation, Complainant, his father, and Mr. Farmer
proceeded to the PSNS police department to file an assault charge.
After filing the charge, Complainant returned to
the work site with a police escort so he could gather his belongings from his locker. Mr. Ness
was there and witnessed Complainant packing his belongings. Mr. Ness asked Complainant
what he was doing and repeatedly questioned him as to whether he was quitting. Continuing his
interrogation, Mr. Ness followed Complainant to his car as he was leaving, and Complaint finally
responded "yes" out of exasperation.
The following Monday, January 19, 1999,
Complainant called in sick. He never returned to the hammerhead crane work site thereafter, and
received no further compensation from Weststar. A few days after his last day of work for
Weststar, Complainant faxed Mr. Ness a letter expressing his desire to return to work and
requesting Mr. Ness's assistance in handling the threats made against him at the work site. (CX
5). Although Mr. Ness received the letter, he never responded.
Conclusions of Law
The CAA's employee protection provisions
provide in relevant part:
No employer may discharge any employee or otherwise discriminate against
any employee with respect to his compensation, terms, conditions, or privileges of
employment because the employee . . .
(1) commenced, caused to be commenced, or is about to
commence a proceeding under this chapter . . .
(3) assisted or participated or is about to assist or participate in any
manner in such a proceeding or in any other action to carry out the
purposes of this chapter.
42 U.S.C. § 7622(a).
[Page 6]
In order to prevail on an action under the
CAA's employee protection provisions, a complainant must establish that: (1) the
complainant engaged in protected activity; (2) the employer took adverse action against the
complainant; (3) the employer was aware of the protected activity at the time it took the adverse
action; and (4) the protected activity was the likely reason for the employer's adverse action
against him. See Tyndall v. United States Environmental Protection Agency , 1993-CAA-
6, 1995-CAA-5 (ARB June 14, 1996); Jackson v. The Comfort Inn, Downtown , 1993-
CAA-7 (Sec'y, Mar. 16, 1995).
Once the complainant has established a
prima facie case, the respondent has the burden of producing evidence to rebut the
presumption of disparate treatment by presenting evidence that the alleged disparate treatment
was motivated by legitimate, nondiscriminatory reasons. Significantly, the employer bears only a
burden of producing evidence at this point; the ultimate burden of persuasion of the existence of
intentional discrimination rests with the employee. Texas Dep't of Community Affairs v.
Burdine , 450 U.S. 248, 254-255 (1981); Dartey v. Zack Company of Chicago , Case
No. 82-ERA-2 (Sec'y April 25, 1983). Once a respondent satisfies its burden of production, the
complainant then may establish that respondent's proffered reason is not the true reason, either
by showing that it is not worthy of belief or by showing that a discriminatory reason more likely
motivated respondent. Shusterman v. EBASCO Services, Inc ., Case No. 87-ERA-27
(Sec'y January 6, 1992).
The Administrative Review Board (the Board)
has held that where a case is fully tried on the merits, it is not necessary to determine whether the
complainant presented a prima facie case and whether the respondent rebutted that showing.
Adjiri v. Emory University, 97-ERA-36 (ARB July 14, 1998); see also
Carroll v. Bechtel Power Corp ., Case No. 91-ERA-46 (Sec'y Feb. 15, 1995), slip op. at
11 n.9, aff'd sub nom. Carroll v. U.S. Dep't of Labor , 78 F.3d 352, 356 (8th Cir. 1996).
"Once Respondent produces evidence in an attempt to show that Complainant was
subjected to adverse action for a legitimate, nondiscriminatory reason, it no longer serves any
analytical purpose to answer the question whether the 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." Id at 6
(citations omitted).
In light to the foregoing, the evidence presented
by Complainant and Respondent will be considered concomitantly to determine whether
Complainant has met his ultimate burden of proof under the Acts.
[Page 7]
Protected Activity
First, Complainant must show that he
engaged in protected activity. In keeping with the principle set forth by the Secretary in
Jenkins v. U.S. Environmental Protection Agency , 92-CAA-6 (Sec'y May 18, 1994), that
the CAA's employee protection provision should be construed broadly, it is determined that
Complainant engaged in protected activity on two separate occasions: first, when he told Mr.
Farmer about Weststar's alleged violations, which in turn prompted Mr. Farmer to contact
several government offices, and second, when he spoke with investigators during OSHA's visit
to the work site.
The first protected act occurred when
Complainant spoke with his neighbor Mr. Farmer, who subsequently sent an e-mail to the EPA,
the PSNS office, and other government offices reporting the subject matter of his conversation
with Complainant. Both the initial conversation and the resulting e-mail implicate the CAA and
the FWPCA as the initial conversation asserted, and the e-mail repeated, allegations that
Weststar burned the lead grit when it became wet, thereby releasing lead into the surrounding air,
neglected to repair rips in the containment thereby allowing lead dust to escape into the
atmosphere, and permitted grit to wash off the pier into the water. Upon learning of the e-
mail, Todd Chapman, the ROICC assigned to the hammerhead crane project, held a
meeting with Complainant and Mr. Ness to discuss the contents of the e-mail. At the meeting,
Complainant confirmed that he was the source of information for the e-mail and he repeated the
allegations made therein (TR at 39-42). By divulging incriminating information to his neighbor,
Complainant set into motion a series of events which resulted in the EPA, the ROICC, and other
government officials being informed of Weststar's environmental violations, even though
Complainant did not contact those entities directly. Complainant engaged in protected activity
since the statute provides protection for employees who caused a proceeding under the
Act to be commenced , as well as to those who directly commence a proceeding. 42
U.S.C. § 7622(a).
The Secretary's decisions in Scott v. Alyeska
Pipeline Service Co. , 92-TSC-2 (Sec'y July 25, 1995), and Wedderspoon v. City of
Cedar Rapids, Iowa , 80-WPC-1 (Sec'y July 28, 1980), provide support for the position that
Complainant's communication with his neighbor was protected activity. In Scott the
Secretary held that providing information to a private person for transmission to responsible
government agencies, or for use in environmental lawsuits against one's employer, is protected
activity under the CAA and the FWPCA. In Wedderspoon , a case which has
facts similar to those in the instant case, the Secretary upheld the ALJ's determination that the
[Page 8] complainant engaged in protected activity when
the complainant reported safety concerns to a friend who was an environmental activist.
The friend, in turn, reported the violations to the local newspaper, who then interviewed
complainant about the alleged violations. The ALJ found that, although the complainant did not
contact federal or state authorities directly, the "causal nexus" between the
complainant's communication with the friend and the newspaper reporter and the subsequent
investigation by a state environmental agency was sufficient to fit within the "caused to be
initiated" language of the FWPCA. Here, the causal connection between Complainant's
conversation with Mr. Farmer and the subsequent meeting with the ROICC is at least as strong as
that in Wedderspoon and possibly stronger because there is one less link in the causal
chain.
In the instant case Complainant did not
necessarily intend that Mr. Farmer report the information to government officials. However, his
motive for relaying the information is not determinative. In Diaz-Robainas v. Florida Power
& Light Co. , 92-ERA-10 (Sec'y Jan. 10 1996), the Secretary held that where the complainant
has a reasonable belief that the respondent is violating the law, other motives he or she may have
for engaging in protected activity are irrelevant. See also Carter v. Electrical District No. 2
of Pinal County , 92-TSC-11 (Sec'y July 26, 1995). Complainant's and Mr. Farmer's
testimony indicate that at the time of their conversation Complainant held a reasonable belief that
Weststar's practices of burning grit, allowing grit to wash off the pier, and neglecting to repair
rips in the containment were illegal.
Complainant's second act which constituted
protected activity was his cooperation with the OSHA investigators during their visit to the
hammerhead crane work site. See DeFord v. Secretary of Labor , 700 F.2d 281
(6th Cir. 1983) (holding that participation in on-site government inspections constitutes a
protected activity). As a part of its investigation, OSHA spoke with several Weststar employees,
including Complainant. During his interview, Complainant told OSHA about Weststar's poor
housekeeping practices. Although OSHA primarily questioned Complainant about occupational
safety and health concerns, Complainant also offered information implicating public safety and
health concerns and environmental protection issues. See Post v. Hensel Phelps Construction
Co. , 1994-CAA-13 (Sec'y Aug. 9, 1995) (stating that the environmental whistleblower
statutes generally do not protect complaints restricted solely to occupational safety and health,
unless the complaints also encompass public safety and health or the environment); Williams
v. TIW Fabrication & Machining, Inc ., 88-SWD-3 (Sec'y June 24, 1992) (holding that the
complainant's communication with an OSHA inspector constituted protected activity because, in
addition to providing information about occupational health and safety violations, complainant
told OSHA about environmental violations); Nathaniel v. Westinghouse Hanford Co. ,
91-SWD-2 (Sec'y Feb. 1, 1995), slip op. at 8-9 (holding that the complainant's complaint
constituted protected activity even though it merely "touched on" subjects regulated
[Page 9] by the pertinent statutes). Specifically, Complainant
discussed with OSHA the lack of adequate shower facilities at the work site. (TR at 44, 45).
Weststar's failure to provide adequate shower facilities for its employees and failure to enforce
the practice of showering after every shift posed a public health and safety risk as it allowed
workers to leave the work site with lead dust on their clothing and skin. As a result, the workers
tracked lead dust into the environment, released it into the surrounding air, and brought it home
where their families were exposed to it. Complainant's own situation illustrates the seriousness
of the risk which this carelessness posed to workers' families, as his daily practice of bringing
home clothes coated in lead dust resulted in both of his daughters suffering from high levels of
blood lead. Thus, since Complainant's conversation with the OSHA investigators touched on
matters of public health and safety covered by the CAA, it constituted protected activity.
Employer's Adverse Action
Complainant argues that he suffered an adverse
employment action by Weststar in the form of constructive discharge. In order to establish that
he was constructively discharged, Complainant must prove that working conditions were
rendered so difficult, unpleasant, unattractive, or unsafe that a reasonable person would have felt
compelled to resign, i.e., that the resignation was involuntary. Johnson v. Old Dominion
Security , 86-CAA-3 to 5 (Sec'y May 29, 1991), slip op. at 19-22 and n.11; see
also Steiner v. Showboat Operating Co., 25 F.3d 1459, 1465 (9th Cir. 1994);
Clark v. Marsh , 665 F.2d 1168, 1174 (D.C. Cir. 1981) (requiring a showing of
"aggravating factors" to substantiate a finding of constructive discharge).
It is determined that Complainant has
established that he was constructively discharged. Complainant was continuously harassed by
coworkers, most of the harassers being relatives of Mr. Ness, the project superintendent. They
repeatedly called him a "narc" and asked him if he was going to sue Weststar.
Although it is difficult to determine whether Weststar employees intentionally dropped
scaffolding near Complainant in an effort to hurt or scare him, it was reasonable for
Complainant to perceive that this was their intention, especially in light of the cryptic statement
made to him by the owner's grandson warning him of "falling nuts" and the other
acts of harassment to which he had been subjected. Even Mr. Ness testified that it was
conceivable that Complainant's coworkers were purposefully trying to scare Complainant with
the falling objects. (TR at 178). The harassment culminated in Complainant being threatened by
a coworker who was cursing at him while holding a knife, an incident which forced Complainant
to conclude that he could no longer work under such conditions.
[Page10]
Complainant's belief that the work site was
unsafe was exacerbated by Weststar's failure to take
action on his behalf. Complainant informed Mr. Ness when the harassment first began, and
complained to him again after the knife incident; however, Mr. Ness failed to take adequate
measures to put an end to the problem. See Taylor v. Hampton Recreation , 82-CETA-
198, (Sec'y April 24, 1987), slip.op. at 7-9 (finding that the complainant was constructively
discharged because, among other reasons, top management had manifested insensitivity and a
marked lack of response to the complainant's grievances and requests for assistance); Marien
v. Northeast Nuclear Energy Co. , 93-ERA-49 and 50 (Sec'y Sept. 18, 1995) (stating that the
ERA requires that an employer consider and evaluate allegations of harassment in an open-
minded and fair manner). Complainant's predicament was compounded by the fact that most of
his harassers were relatives of his supervisor, thereby creating an imbalanced power dynamic.
Whether or not Mr. Ness was in fact partial towards his employee relatives to the detriment of
Complainant, it was nevertheless reasonable for Complainant to perceive that such a partiality
existed, thereby heightening Complainant's sense of helplessness in the face of the constant
harassment and threats to which he was subjected.
Therefore, when Complainant resigned on
January 16, 1998 he did so because he felt unsafe at work and believed that resignation was his
only option. In light of the constant verbal taunting, the ever-present danger of falling objects,
and the threat of violence by coworkers -- all occurring within an environment of inaction and
indifference on the part of Weststar -- a reasonable person in Complainant's position would have
acted accordingly.
Weststar argues that Complainant was not
constructively discharged because the company took appropriate measures to quell the
harassment. Mr. Ness testified that when the harassment was brought to his attention, he
attempted to resolve it. He testified that he believed that his solution to the knife incident, having
Complainant and Mr. Bowman shake hands, sufficiently alleviated the tension between the two
men (TR at 192). When asked whether he believed that Complainant should have been given
more protection, Mr. Ness testified, "I didn't see where Brian needed more protection than
he was getting." (TR at 192). However, Complainant's testimony about the harassment he
was subjected to is accepted and his perception of the threat to his physical well being from his
coworkers was reasonable. Therefore, it is determined that the record supports a finding of
constructive discharge.
[Page 11]
Employer's Knowledge
Complainant must demonstrate that Weststar
was aware of the protected activity at the time it took the adverse action. The record shows that
Complainant's supervisor knew about both incidents of protected activity. Mr. Ness, the project
superintendent, testified that he was aware of the e-mail sent by Mr. Farmer (TR at 174-175, 198, 201-202), and he knew that Complainant was Mr.
Farmer's source of information for the allegations contained therein (TR at 174). Mr. Ness also
testified that he was aware that Complainant spoke with OSHA authorities when they visited the
job site, and he knew that Complainant provided OSHA with unfavorable information about
Weststar's housekeeping practices. (TR at 165). Accordingly, Complainant has established this
element of his case.
Causation
Finally, Complainant must establish that the
protected activity was the likely reason for the employer's adverse action against him. Temporal
proximity is one factor which may be weighed in deciding the ultimate question of whether a
complainant has proven by a preponderance of the evidence that retaliation was a motivating
factor in the adverse action. Jackson v. Ketchikan Pulp Co. , 93-WPC-7 and 8 (Sec'y
Mar. 4, 1996). Here, the constructive discharge occurred only three months after the e-mail
complaint and the OSHA interview, strongly suggesting a causal connection. Furthermore,
although the constructive discharge occurred three months after the protected activity, the
harassment began almost immediately. (TR at 176-77). It is also significant that before the e-
mail complaint and the OSHA interview, Complainant had never been harassed by his
coworkers, in fact he had been highly regarded as a hardworking, loyal employee by supervisors
and coworkers alike. (TR at 187).
The nature of the harassment directed at
Complainant likewise implies a retaliatory motive: coworkers' questions regarding whether
Complainant was planning to sue and their accusations that Complainant was acting as a
"narc" were obviously directed at his whistleblower activity. Mr. Ness admitted as
such at the hearing, stating that he could not think of any other reason why Complainant's
coworkers would have called him a "narc." (TR at 185).
Based on the foregoing, I find that the
Complainant has established that he was constructively discharged by Weststar as a result of his
protected activity, in violation of the CAA and the FWCPA.
Damages
The regulations provide that where Respondent
has been found to be in violation of a whistleblower statute, the Final Order shall order
Respondent to take appropriate affirmative action to abate the violation, including reinstatement
of the Complainant to his former or substantially equivalent position, compensation including
[Page 12]back pay, terms, conditions, and privileges of that
employment. If an employee is found to have been constructively discharged, as in the instant
case, reinstatement or front pay may be appropriate and post-resignation back pay would be
allowed. Further, where appropriate, Respondent may be ordered to provide compensatory
damages to the Complainant, along with all costs including attorney fees and expert witness fees
reasonably incurred by the Complainant in connection with the bringing of this complaint. See
29 C.F.R. § 24.6(2), (3).
Here, reinstatement with Weststar is not a
feasible remedy. Complainant cannot be reinstated to his previous position on the hammerhead
crane project as that project was completed in May of 1998 (TR at 202). Although Weststar
continues to manage other projects, the nature of Weststar's business requires the company to
change locations frequently and to downsize as each project comes to a close. Thus, Weststar is
unable to provide Complainant with steady employment that is close to his home. At
the time that Complainant left Weststar, Weststar was managing two other projects in the vicinity
of Complainant's home: one at the fuel depot in Manchester, and the other at the Naval Air
Station on Whidbey Island. However, the project in Manchester ended shortly after the
hammerhead crane project ended (TR at 205) and the project at the Naval Air Station on
Whidbey Island, which has also since come to an end, required laborers to possess employment
qualifications which Complainant does not have (TR at 206-207). Therefore, the record
does not contain evidence of the existence of a current job with Weststar to which Complainant
can be reinstated.
Complainant requests back pay. The purpose of
back pay is to make the employee whole, that is, to restore the employee to the same position he
would have been in if not discriminated against. Back pay awards should, therefore, be based on
the earnings the employee would have received but for the discrimination. Blackburn v.
Metric Constructors, Inc ., 86-ERA-4 (Sec'y Oct. 30, 1991). The back pay award is offset by
a complainant's interim earnings in positions he or she could not have held had his or her
employment with the respondent continued. Sprague v. American Nuclear Resources,
Inc. , 92-ERA-37 (Sec'y Dec. 1, 1994). The rate of interest to be applied to back pay awards
is that specified in 26 U.S.C. § 6621. Wells v. Kansas Gas & Electric Co. , 85-
ERA-22 (Sec'y Mar. 21, 1991).
The amount of earnings Complainant would
have received from Weststar had he remained on the hammerhead crane project from January 19,
1998 through its completion on May 8, 1998 is $15,760.00 ($985.00 per week x 16 weeks) .
Because Complainant began working at his present job at the Puget Sound Naval Shipyard on
March 2, 1998, the above-stated amount shall be offset by the amount Complainant earned at
PSNS between March 2, 1998 and May 8, 1998, which was $3,155 ($631.00 x 5 weeks) . (CX
10). Therefore, Complainant is entitled to receive back pay for the period January 16, 1998
through May 8, 1998 in the amount of $12,605 plus applicable interest.
[Page 13]
In addition, the record supports the finding that,
had Complainant not been constructively discharged, Weststar would have retained him as an
employee as long as it was able to provide work compatible with his qualifications. When
questioned as to whether Weststar would have kept Complainant as an employee after the
hammerhead crane project was completed, assuming that the constructive discharge had never
occurred, Mr. Ness responded,
I would. Brian would have normally been what I call a "keeper" because of
his level of responsibility. Showed up for work. He did a good job. And, yes, I would
have put him on another job. I've even grabbed guys and asked them to travel with
me, and that would have been the case with Brian. I have never had a problem with
Brian, up until this issue.
Since Weststar managed another project within
the same county as the hammerhead crane project at the Manchester fuel depot (TR 205), and
this project continued for a period of time after the hammerhead crane project was completed, it
is determined that Weststar would have transferred Complainant to the Manchester worksite
upon completion of the hammerhead crane project. However, the record does not
support a finding that Complainant would have continued to work for Weststar after completion
of the Manchester project, because, as mentioned previously, the only other Weststar project in
the area mentioned on the record, the project at the Whidbey Island Naval Air Station, required
specialized trade skills which Complainant does not possess, and the record does not contain
evidence showing that Complainant would have been willing to travel to another area to continue
working with Weststar. Therefore, Complainant is entitled to receive back pay for the period
May 8, 1998 until the last day of the Weststar project located in Manchester, to be calculated at
the same rate of pay he received at the hammerhead crane project, minus interim earnings.
See Doyle v. Hydro Nuclear Services , 89-ERA-22 (ALJ Nov. 7, 1995) (awarding back
pay beyond the original term of employment where the complainant presented evidence that
similarly situated employees were offered jobs by contractor at new work site upon completion
of the original project) (citing Walker v. Ford Motor Co. , 684 F.2d 1355 (11th Cir.
1982)).
Complainant also requests compensatory
damages. In order to recover compensatory damages, a complainant needs to show that he or she
experienced mental pain and suffering caused by the unlawful discharge. Crow v. Noble
Roman's, Inc. , 95-CAA-8 (Sec'y Feb. 26, 1996) (citing Blackburn v. Maring , 982
F.2d 125, 131 (4th Cir.
[Page 14]1992) (ERA case)). The circumstances of the case and testimony about
physical or mental consequences of retaliatory action may support such an award. Creekmore v. ABB Power Systems Energy Services, Inc. ,
93-ERA-24 (Dep. Sec'y Feb. 14, 1996). Competent evidence must prove the existence and
magnitude of subjective injuries. Id. Interest is not awardable on compensatory
damages. Smith v. Littenberg , 92-ERA-52 (Sec'y Sept. 6, 1995).
At the hearing Complainant testified that the
constructive discharge caused him extreme anxiety to the extent that he sought psychiatric
counseling upon the recommendation of his physician. (TR at 90, 262). His testimony was
corroborated by that of his wife, Rebecca Ferguson. (TR at 223). Mrs. Ferguson testified that
the harassment which Complainant suffered at work created difficulties in their marriage and
produced changes in Complainant's personality and emotional state, causing him to feel angry,
bitter, and upset and to be drained of emotional and physical energy. (TR at 228-229). Mrs.
Ferguson described her husband when he returned home from work on the evening of the knife
incident as follows:
The minute Brian walked in, he was so distressed. He was so emotionally
upset that I literally had to very much raise my voice to calm him down.
This is not somebody who would in the state of mind that Brian was in, and the stress
level that he was at when he got home, there's no way that he would have left, not
being shaken up and upset at the time as well, because he was he was just
really I mean he was shaking.
(TR 224). To substantiate the amount of money
he expended on psychiatric care, Complainant presented bills from his psychiatrist. (CX 6). I
find that Complainant has sufficiently demonstrated that he suffered severe emotional distress
resulting from his constructive discharge, and that this distress motivated him to seek counseling.
It is therefore recommended that he be awarded $10,000 for emotional distress and $540 for
reimbursement of psychiatrist's fees.
The amount of $10,000 was derived by
reviewing awards in similar whistleblower and other types of wrongful discharge cases involving
claims of emotional distress. See Leveille v. New York Air National Guard , ARB No. 98-
079, ALJ Nos. 1994-TSC-3 and 4 (ARB Oct. 25, 1999) (reaffirming the longstanding principal
that "compensatory damage awards for emotional distress or mental anguish should be
similar to awards made in other cases involving comparable degrees of injury"); Smith
v. Esicorp , ARB No. 97-065, ALJ No. 1993-ERA-16 (ARB Aug. 27, 1998). In
Smith , the ARB surveyed a series of earlier cases decided by the Secretary and the Board
in which awards for compensatory damages ranged from $5,000 where the complainant showed
that he became
[Page 15]moody and depressed and short tempered with his family, to $75,000 in a case
where there was evidence of major depression
supported by reports by a psychiatrist and a licensed clinical social worker. See also
Leveille v. New York Air National Guard , ARB No. 98-079, ALJ Nos. 1994-TSC-3 and
4 (ARB Oct. 25, 1999) (upholding the ALJ's award of $45,000 for emotional distress where the
complainant presented evidence of a variety of medical and personal problems, including severe
anxiety attacks, inability to concentrate, inability to enjoy life, and marital conflict); Martin
v. The Dept. of the Army , ARB No. 96-131, ALJ No. 1993-SDW-1 (ARB July 30, 1999)
(awarding $75,000 where the complainant presented evidence that he suffered severe emotional
distress manifested by psychological counseling of increasing intensity, several hospitalizations,
withdrawal, lack of concentration, and other symptoms).
In cases where the complainant suffered a degree
of harm comparable to that proven by Complainant in the instant case, $10,000 is a typical
amount awarded for emotional distress. See, e.g. , Lederhaus v. Donald Paschen &
Midwest Inspection Service, Ltd. , 91-ERA-13 (Sec'y Oct. 26, 1992), slip.op. at 11-13
(awarding $10,000 where the complainant showed that he was unemployed for 5 months, he
was forced to borrow money and was harassed by bill collectors, he became angry and
depressed, and he experienced marital conflict); McCuistion v. Tennesee Valley
Authority , 89-ERA-6 (Sec'y Nov. 13, 1991), slip. op. at 21-22 (awarding $10,000 where
complainant was harassed, blacklisted, and fired; he forfeited life, health, and dental insurance;
he was unable to find other employment; the experience exacerbated preexisting hypertension
and caused stomach problems and sleeping problems; he suffered from depression and anxiety);
DeFord v. Tennessee Valley Authority , 81-ERA-1 (Sec'y Apr. 30, 1984), slip. op. at 2-4
(awarding $10,000 where the complainant experienced depression and anxiety and incurred
medical expenses related to the termination).
Complainant testified that he also suffered
financially as a result of the discharge, as he had to take out high-interest loans to cover his
expenses while he was out of work. (TR at 87). As it is clear that Complainant would not have
taken out these loans but for his constructive discharge, I further recommend that Complainant be
awarded $780.33 as restitution for interest paid as a result of such loans. (CX 5).
Finally, Complainant requests punitive damages
equal to the amount of lost wages. (TR at 260). However, no punitive damages will be awarded
as neither the CAA nor the FWCPA authorizes the award of punitive damages.
Counsel for Complainant requests that he be
awarded a fee in accordance with a contingency fee arrangement he negotiated with
Complainant. (TR at 260). However, the U.S. Supreme Court has held that enhancement for
contingency is not permitted under federal fee shifting statutes, including those governing
whistleblower cases.
[Page 16]City of Burlington v. Dague , 505 U.S. 557, 112 S.Ct. 2638 (1992); Lederhaus v. Pashen & Midwest Inspection Service,
Ltd. , 91-ERA-13 (Sec'y Jan. 13, 1993) (holding that Dague applies to whistleblower
statutes). Rather, Complainant's counsel should submit to this office a fee petition detailing the
work performed, the time spent on such work, and the hourly rate of those performing the work.
West v. Systems Applications International , 94-CAA-15 (Sec'y Apr. 19, 1995).
Complainant must also submit an itemization of any costs incurred by counsel. Id.
RECOMMENDED ORDER
IT IS HEREBY RECOMMENDED THAT:
1. Respondent Weststar, Inc. be ordered to:
A. Pay to Complainant back pay in the amount of $12,605 for the
period January 16, 1998 to May 8, 1998;
B. Inform Complainant of the date on which the Manchester project was
completed, and pay to Complainant back pay from May 8, 1998 until the ending date
the Manchester project, to be calculated at the rate of pay he earned at the PNS
hammerhead crane work site, minus his interim earnings during that same period.
B. Pay to Complainant interest on the back pay from the date the payments were due as wages
until the actual date of payment. The rate of interest is payable at the rate
established by section 6621 of the Internal Revenue Code, 26 U.S.C. § 6621;
C. Pay to Complainant compensatory damages in the amount of $11,320.33;and
D. Pay to Complainant all costs and expenses, including attorney fees, reasonably
incurred by him in connection with this proceeding. Thirty (30) days is hereby
allowed to Claimant's counsel for submission of an application of attorney
fees. A service sheet showing that service has been made upon Respondents
and Complainant must accompany the application. Parties have ten (10) days
following receipt of such application within which to file any objections.
[Page 17]
Thomas M. Burke
Associate Chief Judge
Washington, DC
TMB/msm
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, NW, Washington, DC 20210. Such a
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).
[ENDNOTES]
1 The SHARP program is the reporting
agency to which all indications of lead poisoning are reported in the State of Washington. (TR at
84; CX 3).
2 The term "narc" is a
slang term meaning an informant or snitch. (TR at 193).