We also affirm the
calculation of prejudgment interest on the resulting net amount of back pay, at the rate specified
in
26 U.S.C. § 6621.
Front Pay
A successful ERA complainant is entitled to reinstatement, 42 U.S.C.
§
5851(b)(2)(B)(ii), which in this case would mean requiring Respondent to hire Doyle. There is a
practical impediment, however. Hydro's successor, Westinghouse, divested the unit that
provided
decontamination services in January 1991, no longer employs decontamination technicians, and
does
[Page 8]
not have any positions for which Doyle qualifies. T. 70, 174, 200-201; R. D. O. R. at 18. Where
reinstatement is impractical due to changes in the discriminator's work place, courts order front
pay
instead. See, e.g., Blum v. Witco Chem. Corp., 829 F.2d 367, 373-374 (3d Cir. 1987)
and
Coston v. Plitt Theatres, Inc., 831 F.2d 1321, 1331 (7th Cir. 1987), vacated on other
grounds , 486 U.S. 1020 (1988) (reinstatement may be infeasible because of reductions in
force).
We affirm the award of front pay since reinstatement is either impossible or impractical in this
case.
Citing Doyle's age (40 years at the time of the R. D. O. R.), the ALJ found
that
five years of front pay is reasonable in this case. R. D. O. R. at 18. We affirm that amount of
time
for a different reason.
A court has opined that "to the extent a front pay award is necessary
to
make a discrimination victim whole, it assumes that the former employee will find no other
employment during the period for which front pay is offered." Williams v. Pharmacia
Opthalmics, Inc., 926 F.Supp. 791 (N.D. Ind. 1996). The evidence indicates that Doyle is
not
likely to find permanent employment in the next five years. Psychologist Stephen Carter opined
that
Hydro's actions adversely affected Doyle's employability by making him anxious and
uncomfortable
around supervisors and unable to stay employed for long periods. T. 54-56, 70. The
psychologist
concluded that there was a "very, very, very low" probability of Doyle succeeding in
any
employment. T. 71. To make Doyle employable again, Dr. Carter recommended that he receive
psychotherapy for a period of four to five years, T. 58, as well as education or training to help
him
enter a new employment field. T. 59. Since the evidence shows that it will take about five years
to
make Doyle employable again, we affirm the award of five years of front pay.
Front pay is calculated by determining the present value of the future
earnings
that Doyle would have had as a nonlocal decontamination technician working in the nuclear
industry.
From that amount, the present value of Doyle's anticipated future earnings must be subtracted.
See Price v. Marshall Erdman & Assoc., 966 F.2d 320, 322 (7th Cir. 1992) (explaining
front
pay formula in an age discrimination case). We find that Doyle would have worked as a
decontamination technician for six months per year, with a work week consisting of 40 hours of
regular time and 32 hours of overtime. To calculate what Doyle would earn in five years as a
decontamination technician, the average hourly wage for decontamination technicians in the
nuclear
industry nationwide shall be used.
Doyle's anticipated future earnings shall be estimated by using his actual
past earnings. Doyle earned $3000 in the six years prior to the hearing, or an average of $500 per
year. We therefore find that his anticipated future earnings for the five year period are $2500
($500 X 5).
It is necessary to determine the present value of both streams (for
decontamination technician wages and for $2500 in anticipated wages) by using an appropriate
[Page 9]
discount rate. We again encourage the parties to agree to the average hourly wage, the
appropriate discount rate, and the resulting front pay award. The parties shall notify this Board if
they are unable to agree on the amount of front pay, and in that event we will determine whether
the case should be remanded to the ALJ for an exact calculation.
Compensatory Damages
To be entitled to compensatory damages, an ERA complainant must show
that
he experienced mental and emotional distress and that the respondent's adverse action caused the
mental and emotional distress." Blackburn, 982 F.2d at 131, citing Carey v.
Piphus, 435 U.S. 247, 263-264 & n.20 (1978). Hydro contends that, since Doyle did not
regularly see a mental health professional after Hydro's failure to hire him, he did not establish
that
he suffered from mental or emotional distress. Resp. Mem. of Law at 17. Consulting a
psychologist
or a similar professional on a regular basis is not, however, a prerequisite to entitlement to
compensatory damages. See Smith v. Littenberg, Case No. 92-ERA-52, Sec. Dec. and
Ltd.
Remand Ord., Sept. 6, 1995, slip op. At 7-9, appeal dismissed, No. 95-70725 (9th Cir.
Mar.
27, 1996).
Although he did not regularly see a mental health professional, Doyle
consulted physicians who prescribed medications for his anxiety and depression, R. D. O. R. at 9,
as well as other medications for his chest pains. T. 50, 123.
Since Doyle had been a whistleblower while working for other employers
prior to his dealings with Hydro, Respondent contends that its actions did not cause Doyle's
emotional difficulties. Resp. Mem. of Law at 18-20. However, Carter testified that Doyle's
emotional difficulties began at the time that doctors first prescribed medications for his anxiety
and
depression, T. 48-49, and that occurred shortly after Doyle's dealings with Hydro. T. 123. As
Carter
found:
I feel that [Doyle] has a generalized anxiety disorder, and more specifically a
post-traumatic stress disorder. I feel it is situationally related . . . and . . . it's my
conclusion that this is attributable to the problems that he had with Hydro Nuclear
Systems and the issue surrounding the waiver that he was asked to sign and what
happened to him as a result of that.
T. 46. See also T. 63-64: "the statement . . . that he was asked to sign as a condition of his
employment is related to the previous whistle blowing activity. It's that forced signature which
triggers the P[ost] T[raumatic] S[tress] D[isorder], in my opinion." Hydro did not offer any
counter assessment or other evidence to cause us to question Carter's finding of causation.8
[Page 10]
Moreover, even if Doyle had experienced some stress as a result of his
earlier
whistleblowing while employed by others, Hydro still is liable to compensate him if its
discriminatory treatment aggravated that stress and caused additional pain and suffering.
See, e.g., DeFord v. Tennessee Valley Authority, Case No. 81-ERA-1, Sec. Ord.
on
Remand, Apr. 30, 1984, slip op. at 2 (compensatory damages awarded where discrimination
caused
complication of the complainant's pre-existing condition).
Dr. Carter also interviewed Doyle's wife and children, who "noticed
a
radical change in [Doyle's] behavior" after Hydro refused to hire him. T. 48-49. Doyle's
wife
also reported a serious strain in their relationship after that time, T. 50, and they started divorce
proceedings but were able to reconcile. T. 107. In light of Carter's unrefuted testimony that
Hydro's
actions caused Doyle's post-traumatic stress and his explanation of the effect of that stress on
Doyle,
we affirm the AU's conclusion that Doyle is entitled to $40,000 in compensatory damages for his
pain and suffering.
Affirmative Action to Abate Violation
We agree with the remedies recommended by the ALJ to abate the ERA
violation. See R. D. O. R. at 22. Therefore, Respondent shall expunge from Doyle's personnel
records all derogatory or negative information related to the failure to hire him. Respondent also
shall provide neutral employment references and shall not divulge any information pertaining to
not
hiring Doyle or to denying him unescorted access to a nuclear facility, or the reasons for it, when
inquiry is made about Doyle by another employer, organization, or individual. Respondent shall
correct the statement made to Equifax that Doyle was denied access to a nuclear facility. Finally,
Respondent shall post this decision at the nuclear operations of Westinghouse, the successor to
Hydro.
Attorney Fees and Costs
Doyle is entitled to payment of the reasonable costs of bringing his
complaint,
including attorney fees. In the July 16, 1996 Recommended Decision and Order Awarding
Attorney's Fees (Fee Order), the ALJ found that Doyle reasonably incurred an attorney's fee of
$105,181.75 and expenses of $15,450.03 in bringing his complaint. We affirm that finding for
the
reasons stated in the ALJ's Fee Order.
CONCLUSION
1. Consistent with this decision, Respondent shall pay Complainant
back pay plus interest at the rate specified in 26 U.S.C. § 6621 (1988),
2. Respondent shall pay Complainant any benefits to which he would
[Page 11]
have been entitled if he had not been discriminated against, including out of pocket medical
expenses that would have been paid by health insurance available to him as Respondent's
employee (or employee of Respondent's successor, Westinghouse) from the date of the
discriminatory refusal to hire until final judgment.
3. Respondent shall pay Complainant five years' front pay, calculated
according to this decision.
4. Respondent shall pay Complainant $40,000 in compensatory
damages.
5. Respondent shall expunge from Complainant's personnel records
all derogatory or negative information related to the failure to hire him. Respondent also shall
provide neutral employment references and shall not divulge any information pertaining to not
hiring Doyle or to denying him unescorted access to a nuclear facility, or the reasons for it, when
inquiry is made about Doyle by. another employer, organization, or individual. Respondent shall
post this decision at the nuclear operations of Westinghouse, the successor to Respondent.
6. Respondent shall pay to Complainant's attorney $120,631.78, which is
the sum of an
attorney's fee of $105,181.75. and expenses of $15,450.03.
SO ORDERED.
DAVID A. O'BRIEN,
Chair
KARL J. SANDSTROM,
Member
JOYCE D. MILLER,
Alternate Member
[ENDNOTES]
1 On April 17, 1996, the
Secretary delegated jurisdiction to issue final agency decisions under, inter alia, the
Energy Reorganization Act of 19741, 42 U.S.C. § 5851 (1988), and the implementing
regulations, 29 C.F.R. Part 24, to the newly created Administrative Review Board (the Board).
Secretary's Order 2-96 (Apr. 17, 1996), 61 Fed. Reg. 19978, May 3, 1996 (copy attached).
Secretary's Order 2-96 contains a comprehensive list of the statutes,
executive order, and regulations under which the Board now issues final agency decisions. A
copy of the final procedural revisions to the regulations, 61 Fed. 19982, implementing this
reorganization is also attached. The Secretary's earlier decisions and the entire record in this case
have been reviewed by the Board.
2 The 1992 amendments to the
ERA do not apply to this case because the complaint was filed prior to 1992.
3 Hydro paid Doyle for his
transportation expense to the plant and a per diem payment for food and lodging for
approximately a week. R. D. O. R. at ¶ 17.
4 An outage is a shutdown of
operations to perform maintenance at a nuclear power plant. Nonlocal decontamination
technicians are hired as temporary employees to work full-time during an outage and usually are
laid off at the end of that outage. R. D. O. R. at 4 ¶ 13.
5 Reference is to Respondent's
Memorandum of Law in Opposition to the Administrative Law Judge's Recommended Decision
and Order Regarding the Assessment of Damages.
6 In the interest of finality in this
long pending case. we encourage the parties to agree on the average hourly wage for the years
since 1988. If the parties cannot agree, they shall notify the Board, which will determine
whether it is necessary to remand the case to the ALJ for a determination of the exact amount of
back pay owed.
7 At the time of the hearing,
Doyle was working in a temporary position in construction. T. 151-152.
8 After Dr. Carter's testimony,
Hydro sought leave to have Doyle examined by an expert retained by the Respondent and to
submit a report. T. 72. Although the ALJ reserved ruling on the request until the conclusion of
the hearing, T. 73, the transcript does not include such a ruling. We note that Hydro has not
argued before us that it was prevented from having Doyle
examined.