Employee filed claim with Department of Labor, alleging that his
job transfer was the result of deliberate discrimination by
employer (TVA) against him due to his participation in the NRC
inspection process. The Secretary awarded relief to employee,
but denied compensatory damages such as medical expenses under
section 5851. The court held that section 5851(b)(2)(B) allows
compensatory damages in addition to abatement of discrimination,
reinstatement with back pay, and restoration of all job related
entitlements such as retirement benefits.
DeFord v. Secretary of Labor, 700 F.2d 281, 288
(6th Cir. 1983).
[Nuclear & Environmental Digest XVI D 1]
COMPENSATORY DAMAGES; MANDATORY UNDER TSCA; AVAILABLE UNDER
CAA AND RCRA (SDWA)
Compensatory damages are mandatory for a successful complaint under the TSCA, 15
U.S.C. 2622(b)(2)(B)(iii) and may be awarded under the CAA, 42 U.S.C. 7622(b)(2)(B) and the
RCRA (SDWA), 42 U.S.C. § 6971(b). Jones
v. EG & G Defense Materials, Inc.,1995-CAA-3 (ARB Sept. 29, 1998).
[N/E Digest XVI D 1]
BACK PAY; USE OF TITLE VII AUTHORITY
Back pay awards to victorious whistleblowers in DOL adjudications are to be
calculated in
accordance with the make whole remedial scheme embodied in § 706 of Title
VII of the
Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (1988).
See Loeffler v.
Frank, 489 U.S. 549 (1988).
SeePolgar v. Florida Stage Lines, 94-STA-46 (ARB Mar.
31, 1996).
XVI D 1 Compensatory damages
Where a violation has been found, section 5851(b)(2)(B) of the
Energy Reorganization Act permits the award of compensatory
damages in addition to back pay. DeFord v. Secretary of
Labor, 700 F.2d 281, 288 (6th Cir. 1983); 29 C.F.R. §
24.6(2). Blackburn v. Metric Constructors, Inc.,
86-ERA-4 (Sec'y Oct. 30, 1991).
XVI. D. 1. Statutory and regulatory authority
Where a violation is found, the ERA permits the award of
compensatory damages in addition to back pay. 42 U.S.C. §
5851(b)(2)(B); 29 C.F.R. § 24.6(b)(2). Compensatory damages
may be awarded for emotional pain and suffering, mental anguish,
embarrassment, and humiliation. Such awards may be supported by
the circumstances of the case and testimony about physical or
mental consequences of retaliatory action. The testimony of
medical or psychiatric experts is not necessary, but it can
strengthen a Complainant's case for entitlement to compensatory
damages. Thomas v. Arizona Public Service Co., 89-
ERA-19 (Sec'y Sept. 17, 1993).
In Thomas, the Secretary found that an award of
,000 for compensatory damages was appropriate for the
humiliation she experienced in have to undergo a demeaning
recertification process. The Secretary did not award the full
amount sought by the Complainant because by the time of the
hearing the Complainant had successfully recertified on nearly
all of the tests. The Secretary also compared the amount awarded
to the compensatory damages awarded in other cases.
XVI.D.1. Appropriateness of award of compensatory damages
See Hedden v. Conam Inspection, 82-ERA-3 (Sec'y
June 30, 1982), in which the Secretary denied an award of
compensatory damages based upon DeFord v. Tennessee Valley
Authority, 81-ERA-1 (Sec'y Mar. 4, 1981). This aspect of
DeFord was overruled in DeFord v. Secretary of
Labor, 700 F.2d 281 (6th Cir. 1983).
XVI. D. 1. Statutory and regulatory authority
Where a violation is found, the ERA permits the award of
compensatory damages in addition to back pay. 42 U.S.C. §
5851(b)(2)(B); 29 C.F.R. § 24.6(b)(2). Compensatory damages
may be awarded for emotional pain and suffering, mental anguish,
embarrassment, and humiliation. Such awards may be supported by
the circumstances of the case and testimony about physical or
mental consequences of retaliatory action. The testimony of
medical or psychiatric experts is not necessary, but it can
strengthen a Complainant's case for entitlement to compensatory
damages. Thomas v. Arizona Public Service Co., 89-
ERA-19 (Sec'y Sept. 17, 1993).
In Thomas, the Secretary found that an award of
,000 for compensatory damages was appropriate for the
humiliation she experienced in have to undergo a demeaning
recertification process. The Secretary did not award the full
amount sought by the Complainant because by the time of the
hearing the Complainant had successfully recertified on nearly
all of the tests. The Secretary also compared the amount awarded
to the compensatory damages awarded in other cases.
XVI D 1 Compensatory damages, generally
Compensatory damage awards are authorized under the ERA.
Such awards may be supported by the circumstances of the case and
testimony about physical or mental consequences of retaliatory
action.
See Crawford v. Garnier, 719 F.2d 1317, 1324 (7th
Cir. 1983).
"Distress is a personal injury familiar to the law,
customarily proved by showing the nature and circumstances
of the wrong and its effect on the plaintiff."
Carey v. Piphus, 435 U.S. 247, 263-264 (1978).
See Memphis Community School Dist. v. Stachura, 477
U.S. 299, 306-307 (1986) (testimony required as to some form
of disagreeable emotion, anxiety, feeling of intimidation,
etc.); Hobson v. Wilson, 737 F.2d 1, 61-62 and n.173
(D.C. Cir. 1984), cert. denied, 470 U.S. 1084 (1985)
(factfinder may measure this testimony against the
circumstances of case to gauge whether violation justifies
distress alleged); Seaton v. Sky Realty Co., 491
F.2d 634, 636-637 (7th Cir. 1974).
The complainant must prove the existence and magnitude of
subjective injuries with "competent evidence."
The testimony of medical or psychiatric experts is not necessary,
however, although it can strengthen a complainant's case.
As the Supreme Court noted in Carey v. Piphus, 435 U.S. at
264 n.20, "[a]lthough essentially subjective, genuine injury
in this respect [mental suffering or emotional anguish] may be
evidenced by one's conduct and observed by others."
Lederhaus v. Donald Paschen & Midwest Inspection
Service, Ltd., 91-ERA-13 (Sec'y Oct. 26, 1992), slip op.
at 10-11.
In Thomas v. Arizona Public Service Co., 89-ERA-19
(Sec'y Sept. 17, 1993), the Secretary permitted the Complainant
to assign specific dollar amounts to the elements of mental and
physical anguish about which she testified at the hearing. The
Respondent had moved to strike on the ground that this was an
extra-record submission. The Secretary did strike, however,
submissions made after the ALJ's post-hearing briefing period had
expired.
REOPENING OF RECORD ON REMAND
[N/E Digest XVI D 2]
In Smith v. Esicorp, Inc., 93-ERA-16
(Sec'y Mar. 13, 1996), the Complainant was permitted to
supplement the record on remand with evidence on
compensatory damages where in the earlier hearing he had
appeared pro se and was not questioned about any
resulting physical or mental suffering.
XVI. D. 2. When the issure of compensatory damages must be
raised and proved
In Thomas v. Arizona Public Service Co., 89-ERA-19
(Sec'y Sept. 17, 1993), the Secretary permitted the Complainant
to assign specific dollar amounts to the elements of mental and
physical anguish about which she testified at the hearing. The
Respondent had moved to strike on the ground that this was an
extra-record submission. The Secretary did strike, however,
submissions made after the ALJ's post-hearing briefing period had
expired.
In DeFord v. Tennessee Valley Authority, 81-ERA-1
(Sec'y Aug. 16, 1984), the Secretary issued an Order on Remand
from the Sixth Circuit, see DeFord v. Secretary of Labor,
700 F.2d 281 (6th Cir. 1983), in which he implemented the court's
direction to revise DeFord's remedies. In his original decision,
the Secretary had held that compensatory damages are not
recoverable under the employee protection provision of the ERA,
42 U.S.C. § 5851. The ALJ had found Complainant entitled to
compensatory damages in the amount of $50,000 for injury to
professional reputation. DeFord, 700 F.2d at 284.
In the remand decision, the Secretary found that there were three
elements of the claim for compensatory damages: medical
expenses; damages for emotional pain and suffering and mental
anguish; and damages for injury to reputation. The ALJ found
that Complainant's medical problems were caused by TVA's
discriminatory conduct and that his medical expenses were
recoverable. The Secretary found this finding supported by the
record and adopted it.
The Secretary, however, rejected the ALJ's finding that there was
not sufficient evidence of the nature and extent of medical
suffering. The Secretary ruled that stress, anxiety and
depression are mental conditions of which [Complainant's]
physical symptoms are specific evidence. Together with the fact
that Complainant was still seeing a psychiatrist at the time of
the hearing and that an internist had expressed an opinion that
Complainant should not return to work while these symptoms
persisted, the record contained sufficient evidence to show
mental and emotional distress as a result of the discriminatory
actions to permit an award of damages.
The Secretary agreed with the ALJ that Complainant suffered
damage to his reputation, but did not agree with his finding on
the extent of that loss. For example, although Complainant was
shown to have been recognized by various professional engineering
societies, chaired a committee of one, and served on two others,
there was not evidence that he was asked to step down or resign
and there was no evidence that members of these organization and
committees were even aware of Complainant's treatment by
Respondent.
Taking guidance from analogous cases decided under 42 U.S.C.
§ 1983, the Secretary found it appropriate to award $10,000
for mental pain and suffering and damage to reputation.
[Editor's note: The Secretary subsequently rejected
Complainant's motion to supplement the relief granted to increase
the amount awarded, finding that Complainant should have
presented all his proof for future damages at the original
hearing. DeFord v. Tennessee Valley Authority, 81-ERA-1
(Sec'y Aug. 16, 1984).]
XVI D 2 a Complaint; absence of request for specific
damages
A complainant is not required to include an explanation of the
damages sought in his whistleblower complaint. See Sawyers v.
Baldwin Union Free School District, 85-TSC-1 (Sec'y Oct. 5,
1988), slip op. at 3-4. Blackburn v. Metric Constructors,
Inc., 86-ERA-4 (Sec'y Aug. 16, 1993).
XVI D 2 b Scope of damage award following remand
In Mackowiak v. University Nuclear Systems, Inc.,
82-ERA-8 (ALJ July 25, 1986), settled while under review
(Sec'y Apr. 18, 1989), the case had been remanded following
appeal to the Ninth Circuit. At a supplemental hearing conducted
by the ALJ, Complainant submitted evidence of additional damages
incurred since the first hearing. Respondent contended that
additional damages was beyond the scope of the remand order.
The ALJ found that it would defeat the purpose of the ERA if back
pay and other damages were limited to those which had been
incurred by the end of the first hearing, and noted analogous
NLRB authority.
[Nuclear & Environmental Digest XVI D 2 b]
COMPENSATORY DAMAGES FOR NON-PECUNIARY LOSS; PERFECTION OF
PROOF ON DAMAGES DURING REMAND HEARING
In Martin v. The Dept. of the
Army, ARB No. 96-131, ALJ No. 1993-SDW-1 (ARB July 30, 1999), the case
originally was reviewed by the Secretary, who reversed the ALJ's recommendation of no liability --
finding that Respondent had retaliated against Complainant -- and remanded for a hearing on whether
Complainant had been constructively discharged. In the order, the Secretary declined to award
compensatory damages for stress because of lack of proof. Following the remand, the ARB now had
jurisdiction over the matter; it found that the record failed to establish a case of constructive discharge.
The ARB, however, found that it could now award the compensatory damages for stress denied by the
Secretary because the hearing on remand had remedied the lack of proof. The ARB, however,
declined to award compensatory damages for direct pecuniary loss in the form of medical expenses,
finding that there was insufficient evidence on which to base a determination as to the amount of those
expense related to the retaliation found by the Secretary in the original order.
COMPENSATORY DAMAGES; EMOTIONAL IMPACT; EXPERT TESTIMONY;
PROCEEDINGS ON REMAND [N/E Digest XVI D 2 b]
In Mosbaugh v. Georgia Power Co., 91-ERA-1 and
11 (Sec'y Nov. 20, 1995), the Secretary noted that the ERA
whistleblower provision authorizes compensatory damages for a
complainant's pain and suffering. The Secretary stated that
"[t]he very fact of being discharged in violation of the ERA
may have a serious emotional impact on a complainant. . . .
Although a complainant may support his claim of pain and
suffering with the testimony of medical and psychiatric experts,
it is not required." Slip op. at 18 (citations omitted).
In Mosbaugh, the Complainant had testified
about his anguish over losing his job and remaining unemployed
for a lengthy time. In addition, the Complainant had attempted
to offer the testimony of an expert witness, but the ALJ accepted
a written offer of proof in lieu of permitting the testimony.
The ALJ did not make a recommendation on damages, however,
because he had recommended a finding that the Respondent did not
violate the ERA.
The Secretary, finding that there had been a violation of the
ERA, remanded to the ALJ for a recommendation on compensatory
damages, directing him to permit the examination and cross-
examination the expert concerning stress, emotional distress, and
related subjects.
See Pillow v. Bechtel Constr., Inc., 87-ERA-35 (Sec'y July
19, 1993) (suggests that not placing evidence concerning damages
into the record is not fatal to the complainant's entitlement to
relief).
In DeFord v. Tennessee Valley Authority, 81-ERA-1
(Sec'y Aug. 16, 1984) (ruling on motion for reconsideration), the
Secretary considered whether he could entertain a motion for
reconsideration of a final order of the Secretary to supplement
the relief granted by increasing the amount awarded for medical
expenses, damages for mental pain and suffering, and attorneys'
fees, or in the alternative, to remand the case to the ALJ to
take evidence. Complainant submitted an affidavit itemizing his
additional medical expenses and attorney's fees incurred from
about the time was transferred to the ALJ (December 1980) to the
month after the Secretary had issued an order following remand
from the 6th Circuit (May 1984).
The Secretary assumed that Congressional silence on the issue in
the ERA did not indicate an intent to prohibit a motions of this
kind, and therefore turned to the Federal Rules of Civil
Procedure (incorporated into the rules of practice for
administrative proceedings, see e.g., 29 C.F.R. § 18.1; 41
C.F.R. 60-30.1 (1982)) for guidance. The Secretary looked to the
only two possibly applicable rules: Rule 59, New Trials;
Amendment of Judgments, and Rule 60, Relief for Judgment or
Order.
Under both rules, the Secretary concluded that the only arguable
basis for Complainant's motion was newly discovered evidence
justifying an amended order or a new trial. The Secretary found
that such newly discovered evidence must relate to fact existing
at the time of trial of which the moving party was excusably
ignorant though he exercised due diligence to discover them.
Wright & Miller, Federal Practice and Procedure § 2805
(1973). The Secretary noted that a similar standard is
applicable under the Tort Claims Act, stating that recovery there
is limited to the amount demanded in the administrative claim
unless a higher amount can be shown based on newly discovered
evidence not reasonably discoverable at the time or intervening
facts can be proven. See 29 U.S.C. § 2675(b); McDonald
v. United States, 555 F. Supp. 935 (D. Pa. 1983).
The Secretary noted the standards contained in Tort Claims
Act:
The Secretary then ruled that Complainant had an opportunity in
the original hearing before the ALJ to prove his future medical
expenses and damages for mental pain and suffering. He found
that Complainant's medical condition caused by Respondent's
action, the complication of his preexisting mitral valve
prolapse, was not such a complex, unusual or poorly understood
problem as would justify a Rule 59 or Rule 60 motion.
The Secretary also denied the motion for additional attorneys'
fees for work on the post-judgment motion since such work could
not be considered as "in connection with the bringing of the
complaint" as provided in section 5851 of the ERA.
An employer who violates the ERA may be held liable to the employee for compensatory damages for mental or emotional distress. Compensatory damages are designed to compensate whistleblowers not only for direct pecuniary loss, but also for such harms as loss of reputation, personal humiliation, mental anguish, and emotional distress.
Emotional distress is not presumed; it must be proven. "Awards generally require that a plaintiff demonstrate both (1) objective manifestation of distress, e.g., sleeplessness, anxiety, embarrassment, depression, harassment over a protracted period, feelings of isolation, and (2) a causal connection between the violation and the distress." To recover compensatory damages for mental suffering or emotional anguish, a complainant must show by a preponderance of the evidence that the unfavorable personnel action caused the harm.
USDOL/OALJ Reporter at 18 (footnotes omitted). The ARB agreed with the ALJ that the Complainant's testimony that he felt a "tremendous sense of loss," "guilt," and "loss of self esteem," was not sufficient to support an award of compensatory damages. The Complainant had acknowledged that he had not sought or received professional medical help for his symptoms, and had offered no documentary evidence or witness testimony to support his testimony in this regard.
Where a violation has been found, section 5851(b)(2)(B) of the
Energy Reorganization Act permits the award of compensatory
damages in addition to back pay. DeFord v. Secretary of
Labor, 700 F.2d 281, 288 (6th Cir. 1983); 29 C.F.R. §
24.6(2). Compensatory damages may be awarded for emotional pain
and suffering and for mental anguish. DeFord, 700 F.2d at
283; DeFord v. Tennessee Valley Auth., 81-ERA-1 (Sec'y
Apr. 30, 1983). Thus, where appropriate, a complainant may
recover for emotional stress and mental anguish that is the
"proximate" result of the unlawful termination. See
Busche v. Burkee, 649 F.2d 509, 519 n.13 (7th Cir. 1981).
Emotional distress cannot be presumed, and compensatory damages
for mental and emotional distress cannot be awarded "without
proof that such injury actually was caused." Carey v.
Piphus, 435 U.S. 247, 263-4 (1978). The complainant has the
burden of proving the existence and magnitude of subjective
injuries. Busche v. Burkee, 649 F.2d at 519.
Blackburn v. Metric Constructors, Inc., 86-ERA-4
(Sec'y Oct. 30, 1991). In Blackburn the Secretary
declined to adopt the ALJ's recommendation of compensatory
damages for emotional distress and mental anguish where the
Complainant alleged that his emotional stress and mental anguish,
his family problems, and his loss of self-esteem resulted from
his diminished financial situation brought about because of his
inability to find a job following his unlawful termination, but
the record failed to support the allegation of a drastic change
in the Complainant's financial situation.
[Nuclear & Environmental Whistleblower Digest XVI D 3 a]
COMPENSTORY DAMAGES; EMOTIONAL DISTRESS MUST BE PROVEN
Compensatory damages authorized by the whistleblower provision of the Clean Water Act may include damages for emotional distress. Emotional distress, however, is not presumed but must be proven. Moder v. Village of Jackson, Wisconsin, ARB Nos. 01 095 and 02 039, ALJ No. 2000 WPC 5 (ARB June 30, 2003).
[Nuclear & Environmental Whistleblower Digest XVI D 3 a] COMPENSATORY DAMAGES; LACK OF MEDICAL EVIDENCE TO SUPPORT ASSERTION OF STRESS
In Gutierrez v. Regents of the University of California, ARB No. 99 116, ALJ No. 1998 ERA 19 (ARB Nov. 13, 2002), the ARB found that Complainant had not established entitlement to compensatory damages where the sole evidence of record dealing with mental suffering or emotional anguish consists of Complainant's own testimony regarding his elevated blood pressure. The ARB held that "absent medical or other competent evidence that the Complainant suffered from high blood pressure that was causally related to the unfavorable personnel actions the Respondent took, [Complainant] failed to meet his burden of proving a causally related condition, even under the generous evidentiary standards of 29 C.F.R. § 24.6(e)...."
COMPENSATORY DAMAGES; EMOTIONAL DISTRESS; AGGRAVATION
[N/E DIGEST XVI D 3 a]
Employer's contentions that it did not cause Complainant's emotional distress,
but that this
had occurred when he was a whistleblower while working for other employers
prior to his
dealings with Employer, was refuted by psychologist who found that
Complainant's difficulties
began shortly after the problems with Employer. Employer offered no evidence
on other theories
of causation. Even if Complainant had experienced some stress as a result of
his earlier
whistleblowing while employed by others, Employer was still liable to
compensate him if its
discriminatory treatment aggravated that stress and caused additional pain and
suffering. Doyle v. Hydro Nuclear
Services, 89-ERA-22 (ARB Sept. 6, 1996).
COMPENSATORY DAMAGES; MENTAL AND EMOTIONAL DISTRESS; HEART
ATTACK
[N/E Digest XVI D 3 a]
To recover compensatory damages, a complainant must show
that he or she experienced mental and emotional distress and
that the adverse employment action caused the mental and
emotional distress. The circumstances of the case and
testimony about physical or mental consequences of
retaliatory action may support such an award. Competent
evidence must prove the existence and magnitude of
subjective injuries. Creekmore v. ABB Power Systems
Energy Services, Inc., 93-ERA-24 (Dep. Sec'y Feb.
14, 1996).
In Creekmore, the Complainant presented a
brief letter from his treating cardiologist to show that a
heart attack he had suffered during a hiatus in the hearing
had as a major contributing factor the stress he was
undergoing as a result of his termination of employment by
the Respondent. This cardiologist did not testify, and the
Respondent presented as a witness a cardiologist who
testified that other risk factors caused the heart attack
rather than mental stress from the layoff. The ALJ found
that the heart attack was related.
The Deputy Secretary had misgivings about finding a
direct link between the layoff and the heart attack, but
nevertheless found ample evidence emotional distress to
justify a substantial compensatory damages award of $40,000.
Such evidence included the Complainant's testimony of
embarrassment in explaining while job seeking why he was
laid off; of emotional turmoil due to the disruption to him
and his family from temporary consulting work at a distance
and eventual relocation; of his panic about being able to
pay his bills resulting in his request for distribution of
his retirement thereby incurring substantial taxes and
penalties.
COMPENSATORY DAMAGES; REQUIRED SHOWING
[N/E Digest XVI D 3 a and XVI D 4 a]
In order to recover compensatory damages, a complainant
needs to show that he or she experienced mental pain and
suffering and that the unlawful discharge caused the pain
and suffering. Crow v. Noble Roman's, Inc.,
95-CAA-8 (Sec'y Feb. 26, 1996), citing Blackburn v.
Martin, 982 F.2d 125, 131 (4th Cir. 1992) (ERA case).
In Crow, the Complainant testified that he
had
worked for the Respondent and a predecessor company for
almost ten years, and had no advance warning of his
discharge for refusing to work on refrigeration equipment
containing ozone-depleting compounds without a
certification.
There was evidence that the Complainant could not afford
health insurance after the discharge and received food
stamps for a period. He testified that he had very little
money and "it was pretty hard."
The Secretary found that this testimony was sufficient
to
establish entitlement to $10,000 in compensatory damages.
The Secretary cited three other cases in which $10,000 had
been awarded as compensatory damages.
XVI D 3 a Compensatory damages for emotional distress;
consideration of
common sense of situation when considering medical
evidence; modest
size of award based on Complainant's behavior
In Opthof v. Ashland Chemical Co., 94-CAA-7 (ALJ
May 8, 1995), the Complainant
sought compensatory damages for emotional distress and loss of
professional reputation. The record
contained conflicting medical evidence concerning the
relationship between the Complainant's anxiety
and emotional stress and his discharge and harassment on the job.
The ALJ cited longshore workers'
compensation caselaw to the effect that in weighing conflicting
medical evidence, the trier of fact may
rely on the common sense of the situation and may view the
medical evidence in the context of the
relevant sequence of events. Slip op. at 34, citing Atlantic
Marine Inc. v. Bruce, 14 B.R.B.S.
63, 65 (5th Cir. 1981). In such cases, the causation issue is
not solely medical "but compounded
of inextricably intertwined elements of fact, medical opinion and
inference." Slip op. at 34 quoting
Todd Shipyard Corp. v. Donovan, 300 F.2d 741, 742 (5th
Cir. 1962). The ALJ found that the
sequence of events supported a finding that the workplace
situation and the discharge caused the
Complainant significant anxiety and emotional stress; he found
that the medical evidence divorcing the
distress from the protected activity and the discharge flew in
the face of the record.
In assessing the scope of the award, the ALJ took into account
that there was a mixed motive for the
discharge. The ALJ could not allocate with any precision the
degree to which the distress was related
to Respondent's illegal motives as opposed to valid business
considerations. The ALJ concluded that
the award should be modest ($500), however, given chronic
friction between the Complainant and his
supervisors for which the Complainant was partly responsible and
which pre-existed the protected
activity. Such friction was mostly caused by Complainant's seven
collateral court and administrative
proceedings filed against the Respondent, which by and large were
unsuccessful. In addition, the
record established that the Complainant was a difficult employee,
that he had made inappropriate and
tactless remarks, and that there was a question whether he
attempted to implement a collateral
settlement in good faith.
XVI D 3 a Remand
Compensatory damages may be awarded in a ERA whistleblower
complaint for pain and suffering, mental anguish, embarrassment
and humiliation. Such awards may be supported by the
circumstances of the case and testimony about physical or mental
consequences of the retaliatory action. [citations omitted]
Pillow v. Bechtel Construction, Inc., 87-ERA-35
(Sec'y July 19, 1993).
[Editor's note: In Pillow, the ALJ conducted a
hearing and found that a prima facie had not been established.
The Secretary on review found that Respondent violated the ERA.
By remanding for the taking of testimony concerning compensatory
damages, the Secretary is, in effect, supporting a procedure that
does not require a party to put evidence concerning damages on at
the initial hearing.]
XVI D 3 a Emotional stress
In Blackburn v. Metric Constructors, Inc., 86-ERA-4
(Sec'y Aug. 16, 1993), the Secretary issued a Final Order on
Compensatory Damages on remand from the Fourth Circuit. See
Blackburn v. Martin, 982 F.2d 125 (4th Cir. 1992).
Previously, the Secretary had awarded back pay with interest,
expenses, fees and costs, but denied compensatory damages because
the record, in the Secretary's view, did not establish a drastic
change in financial circumstances to support Complainant's claim
for emotional stress. The Fourth Circuit agreed that there was
little evidence of a worsened financial situation, but concluded
that the Secretary had viewed the claim too narrowly. The Court
emphasized that compensatory damages are appropriate for mental
anguish when the economic impact cannot be quantified, and found
that a fair reading of at least part of the hearing testimony
attributed Complainant's loss of self esteem and emotional
problems to the fact that he was fired, apart from any financial
consequences of the termination. Blackburn, 982 F.2d at
132.
On remand the Secretary discounted Respondent's contention that
the testimony of emotional distress resulting from the discharge
was contradicted by the facts that Complainant did not seek
professional counseling and immediately proceeded to other
employment. The Secretary stated that it is not required that
Complainant prove disabling or incapacitation emotional distress,
only genuine, albeit essentially subjective, injury of some
magnitude. See Carey v. Piphus, 435 U.S. 247, 264 n.20
(1978).
In reviewing the relevant evidence and considering the facts in
light of awards in other decisions involving emotional distress,
the Secretary found that $5,000 in compensatory damages was an
appropriate award.
[Editor's note: The ALJ had recommended $10,000 in compensatory
damages for emotional distress and mental anguish. Blackburn
v. Metric Constructors, Inc., 86-ERA-4 (ALJ Feb. 13, 1989).]
XVI D 3 a Stress caused by hostile work environment
In Varnadore v. Oak Ridge National Laboratory, 92-
CAA-2, 5 and 93-CAA-1 (ALJ June 7, 1993), the ALJ found that
compensatory damages for stress caused by the Respondent's having
deliberately created a hostile work environment for the
Complainant were warranted in the amount of $10,000. The ALJ
also concluded that the Respondent "intentionally put [the
Complainant] under stress with full knowledge that he was a
cancer patient recovering after extensive surgery and lengthy
chemotherapy" and recommended an award of $20,000 in
exemplary damages in light of prior authority. The ALJ, however,
noted that policy arguments in support of breaking this precedent
should be addressed to the Secretary of Labor.
The ALJ also ordered reimbursement for psychiatric treatment
related to the effects of the discriminatory treatment,
continuing until the discrimination abates.
XVI D 3 a Generally
Compensatory damages may be awarded in a ERA whistleblower
complaint for pain and suffering, mental anguish, embarrassment
and humiliation. Such awards may be supported by the
circumstances of the case and testimony about physical or mental
consequences of the retaliatory action. [citations omitted]
Pillow v. Bechtel Construction, Inc., 87-ERA-35
(Sec'y July 19, 1993).
[Editor's note: In Pillow, the ALJ conducted a
hearing and found that a prima facie had not been established.
The Secretary on review found that Respondent violated the ERA.
By remanding for the taking of testimony concerning compensatory
damages, the Secretary is, in effect, supporting a procedure that
does not require a party to put evidence concerning damages on at
the initial hearing.]
In Jenkins v. United States Environmental Protection
Agency, 92-CAA-6 (ALJ Dec. 14, 1992), the ALJ denied the
Complainant's request for compensation for loss of professional
reputation. The request was premised on language in DeFord v.
Secretary of Labor, 700 F.2d 281, 283 (6th Cir. 1983). The
ALJ found that there was no evidence that the Complainant 's
professional reputation had been damaged.
[Nuclear & Environmental Digest XVI D 3 b]
COMPENSATORY DAMAGES; INJURY TO PROFESSIONAL REPUTATION
In Leveille v. New York Air National
Guard, ARB No. 98-079, ALJ Nos. 1994-TSC-3 and 4 (ARB Oct. 25, 1999), the
ARB found that a compensatory damage award of $25,000 for damage to professional reputation was
appropriate where Office of Personnel Management still had adverse information on file, and this
information would be available to any other federal agency.
[N/E Digest XVI D 3 b]
COMPENSATORY DAMAGES; AWARD FOR DAMAGE TO PROFESSIONAL
REPUTATION
In Van Der Meer v. Western Kentucky
University, 95-ERA-38 (ARB Apr. 20, 1998), the ARB awarded
Complainant
$40,000 in compensatory damages for loss of professional reputation where Complainant was
"physically escorted from his classroom by the campus police, in front of his students,
and
then hustled through gathering up some personal effects from his office under the watchful
eyes
of the police." Id. @ 8. In addition, Respondent exacerbated the situation
when it
offered no timely information explaining its action, and when it did comment more than four
months later, told local press that Complainant had been removed because of his endangering
employees of the university, and that Complainant would have to have a psychological
examination before he would be permitted back on campus. The ARB found the extraordinary
and very public action against Complainant "surely had a negative impact on
[Complainant's] reputation among the students, faculty and staff at the school, and more
generally in the local community." Id. The ARB also considered stress
caused by
Respondent's failure to follow the conciliation procedure contained in the Faculty Handbook.
The $40,000 award was determined by the ALJ based on a review of prior similar awards;
the ARB found the ALJ's reliance on this method to be "satisfactory."
Complainant
had suffered little out-of-pocket loss.
XVI D 3 b Proving mental anguish and loss of professional
reputation
In DeFord v. Tennessee Valley Authority, 81-ERA-1
(Sec'y Aug. 16, 1984), the Secretary issued an Order on Remand
from the Sixth Circuit, see DeFord v. Secretary of Labor,
700 F.2d 281 (6th Cir. 1983), in which he implemented the court's
direction to revise DeFord's remedies. In his original decision,
the Secretary had held that compensatory damages are not
recoverable under the employee protection provision of the ERA,
42 U.S.C. § 5851. The ALJ had found Complainant entitled to
compensatory damages in the amount of $50,000 for injury to
professional reputation. DeFord, 700 F.2d at 284.
In the remand decision, the Secretary found that there were three
elements of the claim for compensatory damages: medical
expenses; damages for emotional pain and suffering and mental
anguish; and damages for injury to reputation. The ALJ found
that Complainant's medical problems were caused by TVA's
discriminatory conduct and that his medical expenses were
recoverable. The Secretary found this finding supported by the
record and adopted it.
The Secretary, however, rejected the ALJ's finding that there was
not sufficient evidence of the nature and extent of medical
suffering. The Secretary ruled that stress, anxiety and
depression are mental conditions of which [Complainant's]
physical symptoms are specific evidence. Together with the fact
that Complainant was still seeing a psychiatrist at the time of
the hearing and that an internist had expressed an opinion that
Complainant should not return to work while these symptoms
persisted, the record contained sufficient evidence to show
mental and emotional distress as a result of the discriminatory
actions to permit an award of damages.
The Secretary agreed with the ALJ that Complainant suffered
damage to his reputation, but did not agree with his finding on
the extent of that loss. For example, although Complainant was
shown to have been recognized by various professional engineering
societies, chaired a committee of one, and served on two others,
there was not evidence that he was asked to step down or resign
and there was no evidence that members of these organization and
committees were even aware of Complainant's treatment by
Respondent.
Taking guidance from analogous cases decided under 42 U.S.C.
§ 1983, the Secretary found it appropriate to award $10,000
for mental pain and suffering and damage to reputation.
[Editor's note: The Secretary subsequently rejected
Complainant's motion to supplement the relief granted to increase
the amount awarded, finding that Complainant should have
presented all his proof for future damages at the original
hearing. DeFord v. Tennessee Valley Authority, 81-ERA-1
(Sec'y Aug. 16, 1984).]
XVI D 3 c No entitlement to expenses paid
by third party
A complainant is not entitled to reimbursement for health related
expenses that were paid by the union anyway. Nichols v.
Bechtel Construction, Inc., 87-ERA-44 (Sec'y Nov. 18,
1993).
[Nuclear & Environmental Digest XVI D 3 c]
COMPENSATORY DAMAGES; LOSS OF HEALTH BENEFITS
In Tracanna v. Arctic Slope Inspection
Service, 1997-WPC-1 (ALJ
Sept. 18, 1998), the ALJ awarded Complainant over $38,000 in compensatory damages for costs
associated with the treatment of a heart attack where he lost health benefits as a result of his
protected activity.
COMPENSATORY DAMAGES; CONSULTING PHYSICIAN
[N/E DIGEST XVI D 3 c]
Consulting a psychologist or other professional on a regular basis is not a
prerequisite to
entitlement to compensatory damages for mental or emotional distress. Doyle v. Hydro Nuclear
Services, 89-ERA-22 (ARB Sept. 6, 1996).
COMPENSATORY DAMAGES; MEDICAL EXPENSES
[N/E DIGEST XVI D 3 c]
In Doyle v. Hydro Nuclear
Services, 89-ERA-22 (ARB Sept. 6, 1996), Respondent was required
to restore
any benefits to which Complainant would have been entitled, including out of
pocket medical
expenses that would have been covered by the health insurance available to him
as an employee
of Respondent. Respondent was required to pay these expenses incurred up to
the date of the
final judgment.
COMPENSATORY DAMAGES FOR EMOTIONAL DISTRESS; PROFESSIONAL
COUNSELING NOT A PREREQUISITE TO RECOVERY
[N/E Digest XVI D 3 c]
A complainant may be entitled to compensatory damages even
though he or she did not seek professional counseling for
emotional distress resulting from the adverse employment action.
Smith v. Littenberg, 92-ERA-52 (Sec'y Sept. 6,
1995), citing Blackburn v. Metric Constructors, Inc., 86-
ERA-4 (Sec'y Aug. 16, 1993).
COMPENSATORY DAMAGES; FUTURE PSYCHIATRIC COUNSELING
[N/E Digest XVI D 3 c]
Where there was credible medical testimony that the
Complainant may require future psychiatric counseling, but that
therapeutic intervention was "not necessarily
mandatory," the Secretary affirmed the ALJ's order that
Respondent's pay future psychiatric fees up to $10,000, but
placed an additional limitation that the Complainant present
bills evidencing that he afforded himself of such counseling.
Smith v. Littenberg, 92-ERA-52 (Sec'y Sept. 6,
1995).
XVI D 3 c Adverse health consequences
In Varnadore v. Oak Ridge National Laboratory, 92-
CAA-2, 5 and 93-CAA-1 (ALJ June 7, 1993), the ALJ found that the
Complainant had been placed in inappropriate work space when he
was given a base of operations in rooms used as radioactive waste
depositories. In determining whether the Complainant was
entitled to a remedy based on adverse physical health
consequences, the ALJ concluded that the record did not permit a
ruling. The Complainant's own expert could not do any more that
speculate that a recovering cancer patient should not be exposed
to greater than normal background levels of radiation and
admitted that he did not have the expertise to render an opinion
on the effects of occupational radiation doses. The Respondent's
experts indicated that the levels of exposure were not harmful.
COMPENSATORY DAMAGES; TAXES AND PENALTIES INCURRED UPON
TAKING DISTRIBUTION OF RETIREMENT FUNDS
[N/E Digest XVI D 3 d]
In Creekmore v. ABB Power Systems Energy Services,
Inc., 93-ERA-24 (Dep. Sec'y Feb. 14, 1996), the
Complainant testified that he panicked about being able to
pay his bills after being laid off by the Respondent, and
therefore requested distribution of his retirement,
resulting in including substantial taxes and penalties. The
ALJ recommended compensation for these consequences, but the
Deputy Secretary held that since the Complainant "had
the choice of keeping the retirement contributions invested
in a way that would not have caused adverse tax
consequences, [the Complainant] should not be separately
compensated for those penalties...." The Deputy
Secretary, however, considered the Complainant's panic as
evidence of emotional turmoil when determining compensatory
damages for mental and emotional distress.
[Nuclear & Environmental Digest XVI D 3 d]
COMPENSATORY DAMAGES; LOSS OF CONSORTIUM
In Berkman v. U.S. Coast Guard Academy, ARB No. 98-056, ALJ No.
1997-CAA-2 and 9 (ARB Feb. 29, 2000), the ARB adopted the ALJ's analysis concerning
whether Complainant's spouse was entitled to separate damages for loss of consortium. In his
recommended decision, the ALJ wrote:
Complainant has requested reasonable compensatory
damages for Mrs. Berkman's loss of consortium. (CX 120) A loss of consortium claim is
a separate, independent cause of action which accrues to the benefit of a spouse, who is a
plaintiff in his or her own right. This Judge, who is an administrative judge with
jurisdiction clearly circumscribed by particular statutes, is not empowered to adjudicate
such a claim. Any loss of consortium to Mrs. Berkman is not a remedy permitted by the
whistleblower statutes, which permit recovery for compensatory damages only for the
complainant.
[Nuclear & Environmental Digest XVI D 3 d]
COMPENSATORY DAMAGES; EQUITY LOSSES IN PROPERTY; EVIDENCE OF
PROXIMATE CAUSE
In Jones v. EG & G Defense Materials,
Inc.,1995-CAA-3 (ARB Sept.
29, 1998), the ARB declined to award compensatory damages to Complainant for equity losses
in rental property where there was evidence that the rental property was not profitable even
before Complainant was fired because he was putting a lot of improvements into them, and the
timing of the discharge coincided with winter rates. The ARB noted the lack of an essential
causal link between the discharge and foreclosure on the properties, but observed that it might
have decided differently on different facts.
[Nuclear & Environmental Digest XVI D 3 d]
COMPENSATORY DAMAGES; INJURY TO CREDIT RATING; NO DOUBLE
COMPENSATION
Injury to a person's credit standing is a basis for awarding compensatory damages in
employment discrimination cases. In Jones v. EG
& G Defense Materials, Inc.,1995-CAA-3 (ARB Sept. 29, 1998), however,
although there was evidence of a
significant decline in Complainant's credit rating following his discharge, and testimony about
Complainant's lack of success in obtaining loans, since the loans related to Complainant's attempt
to engage in self-employment, and the back pay award would compensate him for any loss in
salary or profit from the self-employment, the ARB declined to make an additional award for
injury to Complainant's credit rating (although it noted that it would take it into consideration in
damages for pain and suffering).
[N/E Digest XVI D 3 d]
COMPENSATORY DAMAGES; ADJUSTMENT FOR ADVERSE TAX
CONSEQUENCES
In Willy v. The Coastal
Corp., 85-CAA-1 (ALJ May 8, 1997), Complainant requested that his
compensatory damages award be adjusted for any adverse tax consequences of
receiving a lump
sum award in a single year. Reviewing legal authority indicating that excess
tax liability is not a
loss within the meaning of the law of damages in contract and tort cases, the
ALJ concluded that
the same rule is applicable to employee protection cases. Thus, the ALJ
declined to include
additional compensation for tax liability in his recommended decision.
COMPENSATORY DAMAGES; MOVING EXPENSES
[N/E Digest XVI D 3 d]
In Creekmore v. ABB Power Systems Energy Services,
Inc., 93-ERA-24 (Dep. Sec'y Apr. 10, 1996) (supplemental
order regarding remand), the Deputy Secretary held that on remand
the ALJ could "take evidence concerning whether [the
Complainant] sustained expenses for relocating . . . that were
not reimbursed by his new employer and that would have been
reimbursed by Respondent if he had made the move to Florida when
[a former subsidiary of Respondent that employed Complainant] was
sold." Slip op. at 4.
COSTS AND EXPENSES; JOB SEARCH EXPENSES
[N/E Digest XVI D 3 d]
In Creekmore v. ABB Power Systems Energy Services,
Inc., 93-ERA-24 (Dep. Sec'y Feb. 14, 1996), the
Deputy Secretary awarded the Complainant job search expenses
for mailing, telephone and travel.
[Editor's note: Although the Deputy Secretary discussed
these "expenses" in a part of the opinion
otherwise addressing litigation expenses, it may not have
been his intention to categorize them as such but rather to
address them as compensatory damages.]
COSTS AND EXPENSES; TRANSPORTATION, LODGING AND MEALS DURING
HEARING
[N/E Digest XVI D 3 d]
Reimbursable costs include a successful complainant's
transportation to, and lodging and meals while attending,
the DOL hearing. In Creekmore v. ABB Power Systems
Energy Services, Inc., 93-ERA-24 (Dep. Sec'y Feb.
14, 1996).
COSTS AND EXPENSES; TRAVEL EXPENSES FOR FAMILY TO VISIT
COMPLAINANT AT NEW JOB PRIOR TO MOVING ENTIRE FAMILY
[N/E Digest XVI D 3 d]
In Creekmore v. ABB Power Systems Energy Services,
Inc., 93-ERA-24 (Dep. Sec'y Feb. 14, 1996), the
Deputy Secretary awarded the Complainant travel expenses for
two trips his family made to visit him in another state
prior to the time the entire family moved to join him. The
Complainant would have incurred this expense if he had not
been discriminatorily laid off.
[Editor's note: Although the Deputy Secretary discussed
these "expenses" in a part of the opinion
otherwise addressing litigation expenses, it may not have
been his intention to categorize them as such but rather to
address them as compensatory damages.]
In Lederhaus v. Donald Paschen & Midwest Inspection
Service, Ltd., 91-ERA-13 (Sec'y Oct. 26, 1992), slip op.
at 11-13, the Secretary reviewed the complainant's evidence
concerning emotional distress resulting from his retaliatory
discharge, and compared the circumstances to those of other
emotional distress awards, and found that the complainant was
entitled to $10,000 in compensatory damages. Corroborated
testimony showed, inter alia, that
The complainant was without a job for five and one
half months.
During that time he and his wife were constantly
harassed by bill collectors, and had to borrow money.
The complainant became depressed and angry, and
contemplated suicide.
The complainant's family life suffered; he argued
with his wife over money, and he cut off contact with
relatives because of embarrassment over the lack of
money.
The cases the Secretary compared were
McCuistion v. Tennessee Valley Authority,
89-ERA-6 (Sec'y Nov. 13, 1991), slip op. at 21-22
($10,000 award; complainant harassed, blacklisted and
fired; forfeited life, health and dental insurance;
unable to find other employment; exacerbated
preexisting hypertension and caused stomach problems;
sleeping difficulty, exhaustion, depression and
anxiety).
DeFord v. Tennessee Valley Authority, 81-
ERA-1 (Sec'y Apr. 30, 1984), slip op. at 2-4 ($10,000
award; medical expenses related to termination; stress,
anxiety and depression for which he was still being
treated at the time of the Secretary's order).
Johnson, et al. v. Old Dominion Security,
86-CAA-3, 4 & 5 (Sec'y May 29, 1991), slip op. at
25-28 ($2,500 award for each complainant; complainants
had sustained prolonged exposure to chemicals that
caused flu-like symptoms, skin irritation, and in one
case, a gland enlargement; after fired, subject to
anxiety related to economic uncertainty, bills and
loans they were forced to delay paying, finding other
work).
Blackburn v. Metric Constructors, Inc., 86-
ERA-4 (Sec'y Oct. 30, 1991) (Decision on damages and
attorney fees), slip op. at 14-17 (zero award;
complainant suffered little if any economic harm which
would have tended to support his assertions of loss of
self esteem and mental distress).
[Nuclear & Environmental Whistleblower Digest XVI D 4 a] COMPENSATORY DAMAGES; COMPARATIVE AWARD
In Hobby v. USDOL, No. 01 10916 (11th Cir. Sept. 30, 2002) (unpublished) (case below ARB No. 98 166, ALJ No. 1990 ERA 30), the ALJ and ARB awarded Complainant $250,000 in compensatory damages. On appeal to the Eleventh Circuit, Respondent argued that this amount was high in relation to other claims. The court, however, found no abuse of discretion by the ARB in affirming the ALJ's reasoning that Complainant had been in a high level position, that he had been unemployed or underemployed for 8 years following his termination and had found no work in the nuclear field B which had a detrimental effect on future promotion and salary increases, and that Complainant's emotional stress as a result, merited a higher award than those made in other cases at the time (1998).
[Nuclear & Environmental Whistleblower Digest XVI D 4 a]
COMPENSATORY DAMAGES; SETTING AMOUNT BASED ON COMPARATIVE
AWARDS AND CIRCUMSTANCES OF THE CASE
In Erickson v. U.S. Environmental Protection
Agency, 1999 CAA 2, 2001 CAA 9 and 13, 2002 CAA 3 and 18 (ALJ Sept. 24,
2002), the ALJ reviewed the amount and circumstances of compensatory damage awards in
other cases, and the circumstances of the instant case, to set recommended compensatory
damages at $50,000. The ALJ found:
In this case, Respondents' left Complainant to suffer the
lingering doubt, of whether the OIG investigation would result in a loss of liberty
and/or means of economic support, from May 15, 1996, to October 2, 1998.
Respondent EPA also permanently transferred Complainant out of her career
field, subjected her to a hostile working environment, and allowed her to suffer
in a position that she was not fully qualified to perform while she attempted to
manage personnel who refused to work with her. Complainant's psychiatrist
causally connected Complainant's stress to Respondent EPA's retaliatory
activities and Complainant testified as to how the stress adversely affected her
health.
See also Hall v. U.S. Army, Dugway Proving Ground, 1997 SDW 5 (ALJ Aug. 8, 2002)
(recommending an award of $450,000.00 representing mental anguish and emotional distress,
adverse physical health consequence, and loss of professional reputation); Evans v.
Baby Tenda, 2001 CAA 4 (ALJ Sept. 30, 2002) (recommending an award of $25,000
where Complainant suyffered physically, mentally and emotionally as a result of the retaliation).
[Nuclear & Environmental Digest XVI D 4 a]
COMPENSATORY DAMAGES; SIZE OF AWARD
In Hobby v. Georgia Power Co., ARB No. 98-166, ALJ No. 1990-ERA-30 (ARB Feb. 9, 2001), the ARB adopted the ALJ's award of compensatory damages in the amount of $250,000. Respondent argued that the ALJ's award of compensatory damages was excessive in light of the fact that Hobby presented no expert medical or psychiatric testimony. The ARB, however, found that "[c]ompensatory damages are designed to compensate discriminatees not only for direct pecuniary loss, but also for such harms as impairment of reputation, personal humiliation, and mental anguish and suffering." Respondent also argued that the award was excessive in light of previous DOL whistleblower cases. The ARB noted that the award was comparatively high, but noted its decision in Leveille v. New York Air Nat'l Guard, ARB No. 98-079, ALJ Nos. 94-TSC-3, 4 (ARB Oct. 25, 1999), it had held that there is no arbitrary upper limit in compensatory damages award and that damage awards in other discrimination-related statutes can be instructive (noting that in Title VII cases, awards up to $300,000 for non-pecuniary losses are allowed). The ARB summarized as follows:
During his final days at Georgia Power, Hobby was subjected to a series of slights by the company -- being moved to a much smaller office, having his building access restricted, and being ordered to turn in his employee badge and his gate opener to the executive parking garage. By themselves, these incidents probably would merit only a small award of compensatory damages. But these small events were the precursor of more serious problems to come as Hobby experienced continuing difficulty finding work in his chosen profession, and experienced emotional distress tied to his depleted finances, repeated requests of friends and family for money, and the obligation to inform those responsible for his professional development that he had been fired from his job with Georgia Power. In terminating Hobby's employment because of his internal complaints, Georgia Power severely damaged Hobby's reputation. It is clear from the record that Hobby's career had been very promising up until his termination; afterward, that career was largely gone. In this context, we find the ALJ's recommended award of $250,000 compensatory damages to be reasonable, and therefore adopt it.
Slip op. at 35 (footnote omitted).
[Nuclear & Environmental Digest XVI D 4 a]
COMPENSATORY DAMAGES; EMOTIONAL DISTRESS; SETTING DOLLAR
AMOUNT WHERE EXPERT TESTIMONY IS OF LIMITED PROBATIVE VALUE
In Beliveau v. Naval Underseas Warfare Center, 1997-SDW-1 and 4
(ALJ June 29, 2000), the ALJ recommended an award of $50,000 in compensatory damages for
emotional distress. Complainant had presented expert testimony, but the ALJ found that it was
of limited probative value. In setting the amount of the award, therefore, the ALJ looked at cases
in which amounts were awarded for emotional distress without expert evidence in support. He
then set the amount at the high end of that range ($20,000 to $50,000) because, despite the
limited weight given to the expert's opinion, it was more probative than a complainant's mere
conjecture.
[Nuclear and Environmental Whistleblower Digest XVI D 4 a]
COMPENSATORY DAMAGES; COMPARATIVE AWARDS; NON-DOL CASES
In Doyle v. Hydro Nuclear
Services, ARB Nos. 99-041, 99-042, and 00-012, ALJ No. 1989-ERA-22 (ARB
May 17, 2000), the ARB compared the circumstances of Complainant's situation with a similar
situation in Leveille v. New York Air National Guard, ARB No. 98-079, ALJ Nos. 1994-
TSC-3 and 4, (ARB Oct. 25, 1999), for purposes of considering additional damages incurred
during remand proceedings. In a footnote, the ARB observed that "[i]n Leveille,
we also noted that Administrative Law Judges may appropriately consider the level of
compensatory damages awarded in employment discrimination cases brought outside the Labor
Department's administrative law system."
[Nuclear & Environmental Digest XVI D 4 a]
COMPENSATORY DAMAGES; CAUSATION
In Berkman v. U.S. Coast Guard Academy, ARB No. 98-056, ALJ No.
1997-CAA-2 and 9 (ARB Feb. 29, 2000), the ARB adopted the ALJ's recommendation of
$70,000 in compensatory damages premised on Complainant's clinical diagnosis of major
depression and the severity of the impact of Respondent's actions on Complainant's personality.
The ARB also adopted the ALJ's recommendation that Respondent must pay Complainant's out-
of-pocket expenses for the cost of obtaining medical treatment and medications for his diagnosed
major depression. Respondent, however, was not to be liable for any amounts that were paid (or
reimbursed) by another person or entity, such as a provider of health insurance.
The ARB observed that "[a] defendant may be held liable for damages when its
negligent or unlawful actions have aggravated a preexisting psychiatric condition." Slip
op. at 29 (citation omitted).
The ARB rejected Respondent's argument that Complainant's testimony about the causes
of his depression were "self-serving," because Complainant had reported the same
causes to the professionals who treated him. Moreover, the ARB rejected Respondent's argument
that a physician who had not visited the work site and spoken to supervisors and co-workers, or
otherwise independently substantiated Complainant's allegations of stress and harassment, could
not conclude that the work situation caused Complainant's mental health condition. The ARB
wrote that "[a] treating professional has received training in determining the source of a
patient's depression, and we rely upon the medical professionals' application of their training in
treating [Complainant]." Slip op. at 30 n.23.
[Nuclear & Environmental Digest XVI D 4 a]
COMPENSATORY DAMAGES; COMPARATIVE AWARDS
In Graf v. Wackenhut Services, L.L.C., 1998-ERA-37 (ALJ Dec. 16,
1999), pet. for review withdrawn Graf v. Wackenhut Services, L.L.C., ARB Nos. 00-
024 and 25 (ARB Feb. 16, 2000), the ALJ found that Complainant was entitled to compensatory
damages of $5,000 based on a comparison with awards made in similar cases. The ALJ found
that Complainant had proved that his temperament and family life had been effected by
Respondent's retaliatory activities, although overall family relationships had been strengthened
through the process. The ALJ, however, found that Complainant's financial concerns were
primarily the result of the decision of Congress and the Department of Energy to close the facility
at which Complainant works in 2006, rather than Respondent's unlawful activities. The ALJ also
found that the severity of the emotional distress experienced by Complainant in the instant case
were not as severe as other whistleblower cases in which larger damage awards had been made.
[Nuclear & Environmental Digest XVI D 4 a]
COMPENSATORY DAMAGES; EMOTIONAL DISTRESS OR MENTAL ANGUISH;
COMPARATIVE AWARDS; REFERENCE TO OTHER DISCRIMINATION-RELATED CASES
MAY BE INSTRUCTIVE BUT NOT CONTROLLING
In Leveille v. New York Air National
Guard, ARB No. 98-079, ALJ Nos. 1994-TSC-3 and 4 (ARB Oct. 25, 1999), the
ARB reaffirmed 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." The ARB noted that in Smith v. Esicorp, ARB No. 97-065, ALJ
No. 1993-ERA-16 (ARB Aug. 27, 1998), it had "reviewed a series of earlier cases decided by
the Secretary and the Board involving compensatory damages awards for mental pain and suffering
ranging from $5,000 in a case where the complainant showed only that he became moody and
depressed and short tempered with his wife and children, to $75,000 in a discriminatory discharge case
where there was evidence of major depression supported by reports by a psychiatrist and a licensed
clinical social worker." Slip op. at 4.
In the instant case, Complainant testified to a variety of medical and personal problems after
learning of blacklisting by Respondent, including severe anxiety attacks, inability to concentrate, inability
to enjoy life, and marital conflict. Her description of mental anguish was supported by a psychologist.
The ALJ, considering the level of harm suffered and comparing that harm with comparable cases,
recommended an award of $45,000 for emotional distress. On appeal to the ARB, Complainant
argued that this award was insufficient, that such awards under the environmental whistleblower statutes
should be set at a level comparable to damage awards by courts or juries for violations of state or
federal anti-discrimination rights statutes or in analogous tort actions, and noted that the compensatory
damage awards in these other types of cases often are substantially higher than the amounts
recommended by the ALJ.
The ARB acknowledged that "damage awards under other discrimination or
discrimination-related statutes can be instructive in setting damage awards in environmental
whistleblower statutes before the Department of Labor, even though the levels of compensatory
damages awarded under these other statutes are not controlling." Slip op. at 5. The Board
continued "We emphasize that there is no arbitrary upper limit on the amount of compensatory
damages that may be awarded under the whistleblower protection provisions enforced by the
Department; indeed, as a practical matter, exclusive reliance on damage awards in prior whistleblower
cases easily could result in the level of compensatory damages becoming frozen in time, ignoring even
such basic factors as inflation -- a result that would be inconsistent with the statutory mandate that the
victims of unlawful discrimination be compensated for the fair value of their loss." Id.
The Board, however, observed that setting a monetary value on intangible damages involves subjective
judgment, and agreed with the ALJ that based on the present record, $45,000 for emotional distress
was reasonable. The ARB also adopted the ALJ's recommended award of $529.28 for past medical
expenses and $10,000 for future medical expenses. Finally, the ARB adopted as a reasonable
procedure the ALJ's order that Complainant submit her bills for medical treatment to Respondent for
payment.
[Nuclear & Environmental Digest XVI D 4 a]
COMPENSATORY DAMAGES FOR NON-PECUNIARY LOSS; COMPARATIVE
AWARDS; PERFECTION OF PROOF ON DAMAGES DURING REMAND HEARING
In Martin v. The Dept. of the
Army, ARB No. 96-131, ALJ No. 1993-SDW-1 (ARB July 30, 1999), the ARB
described the quantum of proof necessary to establish entitlement to compensatory damages for non-
pecuniary losses:
By permitting the recovery of compensatory damages for
violation of its employee protection provision, the SDWA has created "a species of tort
liability" in favor of discriminatees: Damages are designed to compensate for injury
caused by a respondent's breach of duty and "may include not only out-of-pocket loss
and other monetary harms, but also such injuries as 'impairment of reputation . . ., personal
humiliation, and mental anguish and suffering.'" Accordingly, compensatory damages
contemplate restitution for non-pecuniary loss.
Awards generally require that a plaintiff demonstrate both (1)
objective manifestation of distress, e.g., sleeplessness, anxiety, embarrassment,
depression, harassment over a protracted period, feelings of isolation, and (2) a causal
connection between the violation and the distress. Considerations include whether, as a
consequence of the distress, the plaintiff lost the esteem of peers, suffered physical injury,
received psychological counseling, required medication or suffered loss of income.
Id. @ 16-17 (citations omitted); see also Leveille v. New York Air National Guard,
ARB No. 98-079, ALJ Nos. 1994-TSC-3 and 4 (ARB Oct. 25, 1999) (citing
Martin). In the instant case, Complainant presented evidence that he had suffered
severe emotional distress manifested by psychological counseling of increasing intensity, several
hospitalizations, withdrawal, lack of concentration, and other symptoms. The ARB found that
Complainant proved that the severe emotional distress resulted at least in part from Respondent's
retaliation. The ARB awarded $75,000 for these circumstances. The ARB considered federal court
decisions involving similar circumstances, in addition to prior Board decisions, in setting the $75,000
award.
[Nuclear & Environmental Digest XVI D 4 a]
COMPENSATORY DAMAGES; COMPARATIVE AWARDS; SEVERITY OF
RETALIATION
In Smith v. Esicorp,
Inc.,1993-ERA-16 (ARB Aug. 27, 1998), the ALJ
found Complainant to be a very credible witness in describing the impact of Respondent's
harassment, and recommended an award of $100,000 in compensatory damages. The ARB
faulted the ALJ, however, for not explaining how he arrived at the $100,000 figure, and noted
that it is appropriate to consider the range of awards made in similar cases when awarding
compensatory damages. The Board, therefore, listed recent Secretary and ARB decisions
awarding compensatory damages for emotional distress for instruction:
Van der Meer v. Western Kentucky
University, ARB Case No. 97-078, ALJ
Case No. 95-ERA-38, ARB Dec., Apr. 20, 1998. The ARB awarded Van der Meer $40,000
because he suffered public humiliation and the respondent made a statement to a local
newspaper questioning Van der Meer's mental competence.
Gaballa v. The Atlantic Group, Case
No. 94-ERA-9, Sec'y Dec., Jan 18, 1996, slip op.
at 5. Gaballa had been blacklisted, and testified that he felt his career had been destroyed
by the respondent's action. The Secretary reviewed the compensatory damages awards for
mental and emotional suffering made in a number of cases, which ranged from $10,000 to
$50,000, and awarded Gaballa $35,000.
Creekmore v. ABB Power Systems Energy
Services, Inc., Case No. 93-ERA-24,
Dep'y Sec'y Dec., Feb. 14, 1996, slip op. at 25. The Deputy Secretary awarded
Creekmore $40,000 for emotional pain and suffering caused by a discriminatory layoff.
Creekmore showed that his layoff caused emotional turmoil and disruption of his family
because he had to accept temporary work away from home and suffered the humiliation of
having to explain why he had been laid off after 27 years with one company.
Michaud v. BSP Transport, Inc., ARB
Case No. 97-113, ALJ Case No. 95-STA-29,
ARB Dec. Oct. 9, 1997, slip op. at 9. The ARB awarded $75,000 in compensatory
damages where evidence of major depression caused by a discriminatory discharge was
supported by reports by a licensed clinical social worker and a psychiatrist. Evidence also
showed foreclosure on Michaud's home and loss of savings.
Blackburn v. Metric Constructors,
Inc., Case No.1986-ERA-4, Sec'y Dec. after
Remand,
Aug. 16, 1993, slip op. at 5. The Secretary awarded Blackburn $5,000 for mental pain
and suffering caused by discriminatory discharge where Blackburn became moody and
depressed and became short tempered with his wife and children.
Bigham v. Guaranteed Overnight
Delivery, Case No. 95-STA-37, ARB Case
No.
96-108, ARB Dec., Sept. 5, 1997, slip op. at 3. The ARB awarded Bigham $20,000 for
mental anguish resulting from discriminatory layoff.
Lederhaus v. Paschen, Case No.
91-ERA-13, Sec'y Dec., Oct. 26, 1992, slip op. at 10.
The Secretary awarded Lederhaus $10,000 for mental distress caused by discriminatory
discharge where Lederhaus showed he was unemployed for five and one half months;
foreclosure proceedings were initiated on his house; bill collectors harassed him and called
his wife at her job, and her employer threatened to lay her off; and his family life was
disrupted.
The ARB noted that a complainant must prove the existence and magnitude of subjective
injuries with competent evidence. In addition, the ARB held that "[t]he severity of the
retaliation suffered by [Complainant] is also relevant to our determination of appropriate
compensatory damages. The courts have held that the more inherently humiliating and degrading
the defendant's action, the more reasonable it is to infer that a person would suffer emotional
distress, and the more conclusory the evidence of emotional distress may be."
Smith,1993-ERA-16 @ 4.
Based on these principles and comparisons, the ARB reduced the compensatory damages
award to $20,000 for mental pain and suffering, finding that Respondent's conduct was limited to
several cartoons lampooning Complainant for his protected activities, that Complainant did not
suffer loss of a job or blacklisting and did not incur financial losses, and that Complainant's
evidence of mental and emotional injury was limited to his own testimony and that of his wife.
[Nuclear & Environmental Digest XVI D 4 a]
COMPENSATORY DAMAGES; PAIN AND SUFFERING; COMPARATIVE AWARDS
In Jones v. EG & G Defense Materials,
Inc.,1995-CAA-3 (ARB Sept.
29, 1998), the ARB adopted the ALJ's recommendation of a $50,000 award of compensatory
damages for pain and suffering where Complainant testified concerning his embarrassment about
seeking a new job, his emotional turmoil, his panicked response to being unable to pay his debts,
his embarrassment as neighbors witnessed the repossession of his car from his home and
customers witnessed the repossession of his truck from his appliance repair shop. Additional
considerations included loss of medical coverage which resulted in putting off a planned
operation for Complainant's wife to restore lost hearing in one ear, Complainant's inability to
provide continuing financial support to two stepdaughters who were attending college, and
evidence of injury to Complainant's credit rating. Respondent had attacked the ALJ's award
based on the lack of proof of the magnitude of the loss, but the ARB noted that corroborating
testimony of a health professional or family members -- although a means of strengthening a case
for compensatory damages -- is not required. The ARB also noted that the award was
comparable to other such awards in similar cases.
[N/E Digest XVI D 4 a]
COMPENSATORY DAMAGES; COMPARATIVE AWARDS
In LaTorre v. Coriell Institute for Medical Research, 97-ERA-46
(ALJ Dec.
3, 1997), the ALJ found that Complainant had testified credibily about his
loss of self esteem and
emotional pain and suffering resulting from Respondent's adverse employment
action, and
reviewing compensatory damages awards of similar complaints, determined that
the
circumstances justified an award of $26,500 in compensatory damages.
In Berkman v. U.S. Coast Guard Academy, 97-CAA-2 and 9 (ALJ Jan.
2,
1998), the ALJ recommended a compensatory damage award of $70,000 where
Complainant
presented evidence of a clinical diagnosis of major depression requiring
medication and therapy,
and with physical manifestations in the form of frequent anxiety attacks. In
addition, the ALJ
considered that Complainant's character had changed "from an outgoing and
pleasant
gentleman to a defeated and downtrodden individual; from a professional
working in his field of
experience to a store clerk working with little responsibility; and from an
employee who took
pride in his work to an employee who performed his duties in fear of personal
liability."
Slip op. at 51.
COMPENSATORY DAMAGES; COMPARATIVE AWARDS
[N/E Digest XVI D 4 a]
In Doyle v. Hydro Nuclear
Services, 89-ERA-22 (ARB Sept. 6, 1996), the Board affirmed the
ALJ's
recommendation to award Complainant $40,000 in compensatory damages where a
psychologist's unrebutted testimony was that Complainant suffered
post-traumatic stress related
to his whistleblower activities, and had strained relationships with his
children and wife. Of note
earlier in the decision, is the Board's discussion of Complainant's inability
to work as a result of
the post-traumatic stress.
[Editor's note: In his recommended decision, the ALJ relied, in part, on the
decision in
Fleming v. County of Kane, State of Illinois, 898 F.2d 553 (7th Cir.
1990), for the
proposition that damages for emotional stress in cases with similar contexts
have ranged from
$500 to over $40,000]
COMPENSATORY DAMAGES; MENTAL AND EMOTIONAL DISTRESS; HEART
ATTACK
[N/E Digest XVI D 4 a]
To recover compensatory damages, a complainant must show
that he or she experienced mental and emotional distress and
that the adverse employment action caused the mental and
emotional distress. The circumstances of the case and
testimony about physical or mental consequences of
retaliatory action may support such an award. Competent
evidence must prove the existence and magnitude of
subjective injuries. Creekmore v. ABB Power Systems
Energy Services, Inc., 93-ERA-24 (Dep. Sec'y Feb.
14, 1996).
In Creekmore, the Complainant presented a
brief letter from his treating cardiologist to show that a
heart attack he had suffered during a hiatus in the hearing
had as a major contributing factor the stress he was
undergoing as a result of his termination of employment by
the Respondent. This cardiologist did not testify, and the
Respondent presented as a witness a cardiologist who
testified that other risk factors caused the heart attack
rather than mental stress from the layoff. The ALJ found
that the heart attack was related.
The Deputy Secretary had misgivings about finding a
direct link between the layoff and the heart attack, but
nevertheless found ample evidence emotional distress to
justify a substantial compensatory damages award of $40,000.
Such evidence included the Complainant's testimony of
embarrassment in explaining while job seeking why he was
laid off; of emotional turmoil due to the disruption to him
and his family from temporary consulting work at a distance
and eventual relocation; of his panic about being able to
pay his bills resulting in his request for distribution of
his retirement thereby incurring substantial taxes and
penalties.
COMPENSATORY DAMAGES; REQUIRED SHOWING
[N/E Digest XVI D 3 a and XVI D 4 a]
In order to recover compensatory damages, a complainant
needs to show that he or she experienced mental pain and
suffering and that the unlawful discharge caused the pain
and suffering. Crow v. Noble Roman's, Inc.,
95-CAA-8 (Sec'y Feb. 26, 1996), citing Blackburn v.
Martin, 982 F.2d 125, 131 (4th Cir. 1992) (ERA case).
In Crow, the Complainant testified that he
had
worked for the Respondent and a predecessor company for
almost ten years, and had no advance warning of his
discharge for refusing to work on refrigeration equipment
containing ozone-depleting compounds without a
certification.
There was evidence that the Complainant could not afford
health insurance after the discharge and received food
stamps for a period. He testified that he had very little
money and "it was pretty hard."
The Secretary found that this testimony was sufficient
to
establish entitlement to $10,000 in compensatory damages.
The Secretary cited three other cases in which $10,000 had
been awarded as compensatory damages.
DAMAGES; MENTAL AND EMOTIONAL DISTRESS; COMPENSATION
STANDARDS [N/E Digest XVI D 4 a]
In Gaballa v. The Atlantic Group, Inc., 94-ERA-
9 (Sec'y Jan. 18, 1996), the Secretary ordered payment of an
award of $35,000 for mental and emotional suffering. The ALJ had
recommended an award of $75,000. In arriving at the $35,000
figure, the Secretary took into account prior awards in
comparable cases ($10,000 in three cases and $50,000 in another),
the fact that the Complainant had already received compensation
through an earlier settlement for part of the mental and
emotional suffering (which the Secretary found the ALJ had not
considered), and deference to the ALJ who heard and evaluated the
witnesses' testimony.
COMPENSATORY DAMAGES; COMPARATIVE AWARD [N/E Digest XVI D 4 a]
In Doyle v. Hydro Nuclear Services, 89-ERA-22
(ALJ
Nov. 7, 1995), the ALJ reviewed other employment
discrimination cases in which damages for emotional pain,
emotional stress and anxiety, and damage to reputation, had
been awarded, and recommended that under the facts of the
case, an award of $40,000 was appropriate.
XVI D 4 a Recommended award of compensatory damages of
$75,000 where evidence unrefuted that Complainant developed a
permanent psychological disorder resulting from the
discrimination
In Gaballa v. The Atlantic Group, 94-ERA-9 (ALJ May
16, 1995), the ALJ recommended that the Complainant be awarded
$75,000 in compensatory damages for emotional distress where
there was unrefuted testimony of a psychologist that the
Complainant had developed a permanent disorder as the result of
the discrimination by the Respondent. The Respondent had given
a bad reference to an agency employed by the Complainant to check
what kind of reference he would get. The ALJ found no basis for
lost wages or benefits, and found no basis for loss of reputation
because there was no evidence that any prospective employer was
provided a bad reference.
XVI D 4 a Comparative awards
Where Complainant lost his livelihood, forfeited his life
insurance and health and dental insurance upon termination, was
unable to find other employment, experienced physical and
emotional stress as the result of blacklisting and termination,
the Secretary found that he was entitled to an award of
compensatory damages of $10,000. The Secretary noted that it is
appropriate to examine whether an award is out of line with
awards in similar cases, and that Complainant's circumstances
were sufficiently similar to those in DeFord v. Tennessee
Valley Auth., 81-ERA-1 (Sec'y Apr. 30, 1984) and Aumiller
v. Univ. of Delaware, 434 F. Supp. 1273 (D. Del. 1977) to
support an award of $10,000. McCuistion v. Tennessee
Valley Auth., 89-ERA-6 (Sec'y Nov. 13, 1991).
XVI. D. 4. a. Comparative awards
Where a violation is found, the ERA permits the award of
compensatory damages in addition to back pay. 42 U.S.C. §
5851(b)(2)(B); 29 C.F.R. § 24.6(b)(2). Compensatory damages
may be awarded for emotional pain and suffering, mental anguish,
embarrassment, and humiliation. Such awards may be supported by
the circumstances of the case and testimony about physical or
mental consequences of retaliatory action. The testimony of
medical or psychiatric experts is not necessary, but it can
strengthen a Complainant's case for entitlement to compensatory
damages. Thomas v. Arizona Public Service Co., 89-
ERA-19 (Sec'y Sept. 17, 1993).
In Thomas, the Secretary found that an award of
,000 for compensatory damages was appropriate for the
humiliation she experienced in have to undergo a demeaning
recertification process. The Secretary did not award the full
amount sought by the Complainant because by the time of the
hearing the Complainant had successfully recertified on nearly
all of the tests. The Secretary also compared the amount awarded
to the compensatory damages awarded in other cases.
XVI. D. 4. a. Comparative awards
Where a violation is found, the ERA permits the award of
compensatory damages in addition to back pay. 42 U.S.C. §
5851(b)(2)(B); 29 C.F.R. § 24.6(b)(2). Compensatory damages
may be awarded for emotional pain and suffering, mental anguish,
embarrassment, and humiliation. Such awards may be supported by
the circumstances of the case and testimony about physical or
mental consequences of retaliatory action. The testimony of
medical or psychiatric experts is not necessary, but it can
strengthen a Complainant's case for entitlement to compensatory
damages. Thomas v. Arizona Public Service Co., 89-
ERA-19 (Sec'y Sept. 17, 1993).
In Thomas, the Secretary found that an award of
,000 for compensatory damages was appropriate for the
humiliation she experienced in have to undergo a demeaning
recertification process. The Secretary did not award the full
amount sought by the Complainant because by the time of the
hearing the Complainant had successfully recertified on nearly
all of the tests. The Secretary also compared the amount awarded
to the compensatory damages awarded in other cases.
XVI. D. 4 a. Compensatory damages
In Willy v. The Coastal Corp., 85-CAA-1 (Sec'y June
1, 1994), the Secretary rejected evidence offered by Complainant
on his projected loss of earnings over his entire working life
because such evidence is more relevant to a wrongful death action
than a retaliatory discharge case.
If an employer takes action that adversely affects Complainant's
employment opportunities with third parties (blacklisting), it
could be liable for any lost wages resulting from that action.
See Sherman v. Burke Contracting Inc., 891 F.2d 1527,
1535-1536 (11th Cir. 1990) (former employer, who persuaded new
employer to discharge employee because employee had filed Title
VII complaint alleged unlawful termination by former employer, is
liable for wages employee would have earned if not discharged by
new employer). Blackburn v. Metric Constructors,
Inc., 86-ERA-4 (Sec'y Oct. 30, 1991).
[N/E Digest XVI D 4 c]
COMPENSATORY DAMAGES; HOSTILE WORK ENVIRONMENT
In Smith v. Esicorp,
Inc., 93-ERA-16 (ALJ Feb. 26, 1997), the ALJ
considered compensatory damages for a whistleblower who had been
subjected to a hostile work environment. The ALJ noted several
factors that influenced his decision to recommend compensatory
damages in the amount of $100,000, including Complainant's
credibility, and testimony establishing that the hostile working
environment changed Complainant's demeanor and his outlook on
life (including depression, physical symptoms, family
disruptions, suicidal thoughts, and changed relationships with
friends).
In Smith, Respondent did not offer any contrary
evidence, but suggested that the validity of Complainant's
testimony regarding his emotional problems should be attenuated
because Complainant and his wife were the only witnesses at the
formal hearing. The ALJ dismissed this contention, noting that
expert testimony is not necessary to establish Complainant's
emotional distress resulting from Respondent's hostile working
environment, and finding that Complainant's emotional problems
could be inferred from the circumstances as well as established
by the testimony. The ALJ indicated that he was strongly
influenced by Complainant's emotional reactions during testimony,
which he found were genuine and showed obvious emotional
distress. The ALJ also noted examples of workplace harassment
other than the evidence that the Secretary based his finding of
hostile work environment, including continuing use of the word
"Bubba-gate" at the work facility.
XVI D 4 c Continuing violation; recovery only for 30 days
prior to filing of complaint
In Simmons v. Florida Power Corp., 89-ERA-28 and 29
(ALJ Dec. 13, 1989) (supplemental decision ALJ Apr. 11, 1990),
dismissed on review by the Secretary based on settlement
agreement in decision consolidated with 88-ERA-28 and 30, Simmons
v. Fluor Constructors, Inc., 88-ERA-28 and 30 and 89-ERA-28
and 29 (Sec'y June 28, 1991), the Respondent did not contest the
complainants' charge that a blacklisting policy had been
instituted against the complainants in violation of the ERA,
beginning in August of 1981. The issue presented was the period
of recovery. The parties stipulated that if a continuing
violation occurred, the recovery period should extend back to
August 1, 1988, but that if an exception based on the decision in
Roberts v. Gadsen Memorial Hospital, 835 F.2d 793,
modified on sua sponte reh'g, 850 F.2d 1549 (11th Cir.
1988) (Title VII case), bars application of the continuing
violation theory to the instant case, the appropriate period of
relief extends back only thirty days before the date of the event
causing the filing of the blacklisting complaint.
Reviewing the Roberts decision as modified on rehearing,
the ALJ essentially agreed with the Respondent's argument that
because the "Complainants were aware of the prior pipefitter
recalls at or near the time, yet failed to timely assert their
rights under the Act, the continuing violation doctrine does not
allow Complainants a second chance to file following the lapse of
the statute of limitations with respect to those
violations." ALJ slip op. at 7-9.
In Doyle v. Hydro Nuclear
Services, ARB Nos. 99-041, 99-042, and 00-012, ALJ No. 1989-ERA-22 (ARB
May 17, 2000), the ARB implicitly held that compensatory damages may be enhanced to account
for a 1996 amendment to the Internal Revenue Code to "provide that compensatory
damages received for non-physical injuries, such as emotional distress, may not be excluded
from gross income. Pub. L. No. 104-188, §1605(b), 110 Stat. 1838-39. This change applies
to amounts received after August 20, 1996, in taxable years ending after such date. Id.,
§1605(d)." In this regard, the complainant has the burden to establish the amount of
any such tax enhancement.
In a footnote, the ARB observed that the parties had not agreed to any enhancement of the
compensatory damages award in their stipulations, which merely recited the fact that the ARB
had previously awarded such damages and the amount thereof.
[Nuclear and Environmental Digest XVI D 4 d]
TAX IMPLICATIONS OF WHISTLEBLOWER AWARD
In Murphy v. Internal Revenue Service, No. 05-5139 (D.C.Cir. Aug. 22, 2006), the Plaintiff had been awarded damages in a Department of Labor whistleblower proceeding, which included payments for "emotional distress or mental anguish" and "injury to professional reputation." See Leveille v. New York Air National Guard, ARB No. 98-079, ALJ Nos. 1994-TSC-3 and 4 (ARB Oct. 25, 1999). The Plaintiff initially paid taxes on the award, but later filed an amendment seeking a refund. The IRS denied the request for refund, and the Plaintiff filed suit in federal court arguing that the amount should have been excluded from gross income under 26 U.S.C. § 104(a), which provides an exclusion for damages received on account of personal physical injuries or physical sickness, or in the alternative that the I.R.C. provision was unconstitutional to the extent that failed to exclude damages awarded for emotional distress and injury to professional reputation. The District Court rejected both arguments. The Court of Appeals for the District of Columbia also rejected the first argument, but accepted the constitutional argument, finding that damages for matters such as emotional distress and injury to reputation are not income within the meaning of the 16th Amendment to the Constitution. The Department of Justice thereafter petitioned for an en banc hearing. The appeals panel, however, issued an Order on December 22, 2006 vacating the August 22, 2006 decision, and scheduling oral argument. Murphy v. Internal Revenue Service, No. 05-5139 (D.C. Cir. Dec. 22, 2006).
In its decision on rehearing, the Court of Appeals held that the compensatory damages award, "even if it is not income within the meaning of
the Sixteenth Amendment, is within the reach of the congressional power to tax under Article I, Section 8 of the Constitution."
Murphy v. Internal Revenue Service, No. 03-CV-02414 (D.C.Cir. July 3, 2007), slip op. at 5-6. Moreover, upon
close review of the ALJ and ARB decisions, the court found that the Plaintiff compensatory damages award was not "awarded by reason of,
or because of, ... [physical] personal injuries," and therefore § 104(a)(2) of the IRC did not permit her to exclude the award from gross
income. Id. at 11. The court held that "gross income in § 61(a) must ... include an award for nonphysical damages such as
Murphy received, regardless of whether the award is an accession to wealth." Id. at 19.
[Nuclear and Environmental Whistleblower Digest XVI D 4 d]
DAMAGES; TAXATION; AWARD OF COMPENSATORY DAMAGES FOR EMOTIONAL DISTRESS AND DAMAGE TO REPUTATION NOT EXEMPT UNDER I.R.C. § 104(a)(2)
In Murphy v. I.R.S., No. 03-02414 (D.D.C. Mar. 22, 2005) (related to Leveille v. New York Air National Guard, ARB No. 98-079, ALJ Nos. 1994-TSC-3 and 4), the District Court for the District of Columbia held that I.R.C. § 104(a)(2) does not exempt from taxation a compensatory damages award for emotional distress and damage to reputation in an environmental whistleblower case. The court wrote:
Here, Murphy's mental anguish manifested into a physical problem, bruxism, but this was only a symptom of her emotional distress, not the source of her claim. Plaintiff's emotional distress is not "attributable to her physical injury; in fact, it is the other way around. Because the statute clearly provides damages must be received "on account of personal physical injury or physical sickness," and because mental pain and anguish and damage to reputation are not physical injuries, plaintiff's emotional distress damages are not included within the statutory exemption under § 104(a)(2).
In Doyle v. Hydro Nuclear
Services, ARB Nos. 99-041, 99-042, and 00-012, ALJ No. 1989-ERA-22 (ARB
May 17, 2000), the ARB awarded Complainant additional compensatory damages for the harm
he suffered during the several years of a remand proceeding following an earlier order awarding
damages. Comparing the circumstances of Complainant's situation with a similar situation in
Leveille v. New York Air National Guard, ARB No. 98-079, ALJ Nos. 1994- TSC-3 and
4, (ARB Oct. 25, 1999), the ARB awarded an additional $40,000, that when combined with the
earlier ordered damages totaled $80,000 in compensatory damages.
During the remand proceedings, Respondent had not paid the earlier ordered damages or
otherwise complied with the ordered remedies. Respondent had not complied with an order to
correct a notation that Complainant had been denied access to a nuclear plant, thereby preventing
Complainant from obtaining any employment in the nuclear field. The ARB, however, noted
that the reason for the additional award was not based on punishment for Respondent's inaction.
The ARB wrote: "We reject Doyle's claim of entitlement to additional damages because of
Hydro's failure to comply with the earlier-ordered remedies. A party need not comply with
decisions that are not administratively final, and this is the administratively final decision in
Doyle's case." Doyle, 1989-ERA-22 (ARB May 17, 2000) @ n.14.