USDOL/OALJ Law Library: Nuclear and Environmental Whistleblower Digest, DIVISION XVI C -- BACK PAY, AND OTHER TERMS, CONDITIONS AND PRIVILEGES OF EMPLOYMENT

In Johnson v. Bechtel Construction Co., 95-ERA-11 (Sec'y Sept. 11, 1995), in regard to the calculation of the beginning date for an award of prejudgment interest on the back pay award, the Respondent's contention of the earliest date the Complainant would have been hired to work for an outage was rejected where a different laborer was hired eleven days earlier. The Secretary based this ruling on the principle that uncertainties in back pay awards are resolved in favor of the successful complainant and against the discriminating party. Citing Nichols v. Bechtel Construction Inc., 87-ERA-44, slip op. at 10 (Sec'y Nov. 18, 1993), aff'd sub nom. Bechtel Construction Co. v. Sec'y of Labor, 50 F.3d 926 (11th Cir. 1995).

XVI C 1 c Separate statements in post-hearing briefs may be viewed as stipulation

Where both the complainant and the respondent agreed in their post-hearing briefs to the ALJ to use a seven/seven shift for calculating back pay, the statements in the separate documents may be viewed as a stipulation as to how to calculate back pay. Adams v. Coastal Production Operators, Inc., 89- ERA-3 (Sec'y Aug. 5, 1992).

[Editor's note: Adams v. Coastal Production Operators, Inc., 89-ERA-3, did not arise under the Energy Reorganization Act, although the OALJ gave it an "ERA" docket number. It was actually a Federal Water Pollution Control Act case.]

XVI C 1 c. Exactitude not required; uncertainties resolved against discriminating party

Because back pay promotes the remedial statutory purpose of making whole the victims of discrimination, "unrealistic exactitude is not required" in calculating back pay, and "uncertainties in determining what an employee would have earned but for the discrimination, should be resolved against the discriminating [party]." EEOC v. Enterprise Ass'n Steamfitters Local No. 638, 542 F.2d 579, 587 (2d Cir. 1976), cert. denied, 430 U.S. 911 (1977), quoting Hairston v. cLean Trucking Co., 520 F.2d 226, 233 (4th Cir. 1975). See NLRB v. Browne, 890 F.2d 605, 608 (2d Cir. 1989) (once the plaintiff establishes the gross amount of back pay due, the burden shifts to the defendant to prove facts which would mitigate that liability). Lederhaus v. Donald Paschen & Midwest Inspection Service, Ltd., 91-ERA-13 (Sec'y Oct. 26, 1992), slip op. at 9-10.

XVI C 1 c Back pay; burden of proof

The complainant bears the burden of establishing the amount of back pay that a respondent owes. Adams v. Coastal Production Operators, Inc., 89-ERA-3 (Sec'y Aug. 5, 1992).

[Editor's note: Adams v. Coastal Production Operators, Inc., 89-ERA-3, did not arise under the Energy Reorganization Act, although the OALJ gave it an "ERA" docket number. It was actually a Federal Water Pollution Control Act case.]

XVI C 1 c Interference with employment opportunities; presumption of entitlement to lost wages

In Artrip v. Ebasco Services, Inc., 89-ERA-23 (Sec'y Mar. 21, 1995), the Respondent, a former employer, controlled access to employment opportunities, and denied the Complainant such access based on invidious criteria. The Secretary found that the Respondent bears the burden of disproving the Complainant's entitlement to lost wages under these circumstances.

In making this finding, the Secretary relied on a general principle that once discrimination has been proven, a presumption of entitlement to back pay arises, with the burden shifting to the employer to rebut the presumption by showing that the discriminatee would not have been hired absent the discrimination.

Although the Respondent would not have made the ultimate hiring decision, the Secretary found that given a close, intertwined employment relationship between the Respondent and the contractor that requested referrals, witnesses and records on this issue should have been easily accessible. The ALJ had found that the Complainant was not as qualified as the other former employees who were referred, but the Secretary found no evidence in the record to support this finding, and rejected it.

XVI C 1 d Stay of Secretary's final order

See Guttman v. Passaic Valley Sewerage Commissioners, 85- WPC-2 (Sec'y June 4, 1992) (denial of stay request pending review by court of appeals; neither mere possibility of success on appeal nor certain economic loss in the interim is sufficient to warrant a stay).

STAY OF PRELIMINARY ORDER OF RELIEF UNDER ERA
[N/E Digest XVI B 6; XVI C 1 d]

In McCafferty v. Centerior Energy , 96-ERA-6 (ARB Oct. 16, 1996), Respondents sought an order staying a preliminary order that Respondent comply with the relief ordered by the ALJ in his Recommended Decision and Order. The Board, noting that this matter was a bit unusual in that it involves a preliminary agency order rather than a final order, applied the four part test of State of Ohio ex rel. Celebrezze v. N.R.C. , 812 F.2d 288, 290 (6th Cir. 1987) in denying the motion. The Board found neither a strong or substantial likelihood of success by Respondent on review of the merits, no strong showing of irreparable harm ("mere" financial loss of back pay not sufficient to establish irreparable harm; Complainants not shown to be judgment proof; since power plant is not currently in outage, unlikely that Complainants would be immediately reinstated), but a strong public interest in favor of preliminary orders in ERA cases.

XVI C 1 e Joint employer

See Adams v. Coastal Production Operators, Inc., 89-ERA-3 (Sec'y Aug. 5, 1992) (a co-respondent may be held liable for back pay even though it was not a knowing participation in the discrimination).

XVI C 2 Back pay calculation based on average hours worked

In Sprague v. American Nuclear Resources, Inc., 92-ERA-37 (Sec'y Dec. 1, 1994), the Secretary adopted the ALJ's conclusion that back pay should be calculated based on the average hours worked by persons in Complainant's position.

DAMAGES; BACK PAY; DISCRIMINATION IMPAIRS COMPLAINANT'S ABILITY TO WORK IN INDUSTRY
[N/E DIGEST XVI C 2]

Back pay award continued to date of final judgment where Employer's failure to hire Complainant prevented him from working in the nuclear industry to the present. Complainant was not hired because he refused to sign a waiver releasing Employer for any and all liability. Because of this refusal, Employer denied Complainant unescorted access to the nuclear facility. Employer notified an agency of this denial, which ensured that other employers would learn Complainant had been denied unescorted access. Doyle v. Hydro Nuclear Services , 89-ERA-22 (ARB Sept. 6, 1996).

XVI. C. 2. Computation of back pay

In Thomas v. Arizona Public Service Co., 89-ERA-19 (Sec'y Sept. 17, 1993), the Secretary ordered the Respondent to promote Complainant to a position for which she was denied based on reasons established to be pretext for discrimination. The Secretary also ordered back pay from the date of denial of the promotion.

XVI C 2 Memorandum of agreement not sufficient

The ALJ recommended approval of a settlement agreement. For reasons of confidentiality, the actual agreement was not submitted to the ALJ or the Secretary. The Secretary ordered the parties to submit a copy of the settlement agreement so he could determine whether it was fair, adequate and reasonable. The Secretary has previously held that a settlement agreement cannot be approved unless such a determination has been made, especially when the agreement has legal precedence over the memorandum of settlement.

Once submitted for review, all submissions including settlement agreements and all related documents become part of the public record in the case, and are subject to the Freedom of Information Act. The parties, however, may designate specific information as confidential commercial information to be handled as provided in 29 C.F.R. Part 70.

McCoy v. Utah Power/Pacific Power, 94-CAA-1 and 6 (Sec'y Mar. 22, 1994).

XVI C 2 Generally

The Secretary remanded the case for the ALJ to make a recommended back pay calculation in Blake v. Hatfield Electric Co., 87-ERA-4 (Sec'y Jan. 22, 1992) (during the remand, the parties settled, see Deputy Secretary's order approving settlement of May 28, 1992). The ALJ was instructed to receive necessary supplemental evidence and to calculate back pay in accordance with the standards established by the Secretary in Johnson v. Old Dominion Security, 86-CAA-3, 4, 5 (Sec'y ay 29, 1991), slip op. at 232-24 and Wells v. Kansas Gas & Electric, 85-ERA-22 (Sec'y Mar. 21, 1991), slip op. at 17.

XVI. C. 2. Computation of back pay

In Thomas v. Arizona Public Service Co., 89-ERA-19 (Sec'y Sept. 17, 1993), the Secretary ordered the Respondent to promote Complainant to a position for which she was denied based on reasons established to be pretext for discrimination. The Secretary also ordered back pay from the date of denial of the promotion.

XVI C 2 a Construction of hypothetical employment history

Since the purpose of back pay is to make the victim whole, courts construct the hypothetical employment history of the discrimination victim to determine the appropriate scope of the remedy. UTU v. Norfolk & Western Ry., 532 F.2d 336 (4th Cir. 1975), cert. denied, 425 U.S. 934 (1976). Back pay liability and the right to reinstatement ends when the discriminatee would have been laid off absent any discrimination. Mansion House Center Management Corp., et. al, 1974 CCH- NLRB 26, 167.

Cram v. Pullman-Higgins Co., 84-ERA-17 (Sec'y Jan. 14, 1985).

[Nuclear & Environmental Digest XVI C 2 a]
BACK PAY; USE OF SIMILAR EMPLOYEE METHOD WHERE FORMULA METHOD WOULD NOT REFLECT INTANGIBLES

In Tracanna v. Arctic Slope Inspection Service , 1997-WPC-1 (ALJ Sept. 18, 1998), Complainant proffered two alternative methods for calculating back pay -- a formula method that made certain assumptions about weeks and hours worked, and a "similarly situated employee" method. The ALJ found in his recommended decision that the similar employee method was better suited in the instant case because the formula method would not take into consideration the possibility of personal time, spontaneous work- load increases or decreases, or the general level of activity for inspectors during the relevant time period. The ALJ agreed with Complainant's choice of a similarly situated employee, whose experiences, qualifications and backgrounds were similar.

[N/E Digest XVI C 2 a]
BACK PAY; USE OF AVERAGE NUMBER OF HOURS WORKED BY COWORKERS

In Hoffman v. Bossert , 94-CAA-4 (ARB Jan. 22, 1997), the Board found that Complainant's calculation of back pay by multiplying the prevailing wage rate by the average number of hours worked by other employees was valid.

XVI C 2 b i Proof that complainant would have been laid off anyway

A successful ERA complainant is entitled only to the same treatment as other employees in the same position who were retained after a layoff. If the complainant would have been laid off after that date, back pay would be cut off at that point, and the complainant would not be entitled to be retained until all other inspectors have been laid off. The Secretary remanded to the ALJ for further fact finding. Blake v. Hatfield Electric Co., 87-ERA-4 (Sec'y Jan. 22, 1992) (during the remand, the parties settled, see Deputy Secretary's order approving settlement of May 28, 1992).

[N/E Digest XVI C 2 b]
BACK PAY; UNCERTAINTIES RESOLVED IN FAVOR OF COMPLAINANT

In Hoffman v. Bossert , 94-CAA-4 (ARB Jan. 22, 1997), the Board found that the ALJ erred in concluding that the earlier of two possible dates that Complainant may have been laid-off should be used to determine back pay. The Board found that the ALJ failed to apply the principle that any uncertainties in calculating back pay are resolved in favor of the complainant.

BACK PAY; DISCRIMINATING RESPONDENT BEARS BURDEN OF PROVING THAT COMPLAINANT WOULD NOT HAVE BEEN HIRED IF PROPERLY REFERRED FOR ANOTHER JOB; LIABILITY BEGINS ON DATE COMPLAINANT WOULD HAVE BEGUN NEW JOB
[N/E Digest XVI C 2 b]

Where a respondent retaliates against a complainant by refusing to refer that complainant to another employer for possible employment, that respondent bears the burden of proving that the complainant would not have been hired even if he had been referred for the job. If the respondent fails to meet that burden, back pay relief is available for the complainant.

In this circumstance, where the respondent's layoff of the complainant was not unlawful, the backpay period does not begin with the date of the layoff, but the date when he or she would have first begun working on the other job.

See Artrip v. Ebasco Services, Inc. , 89-ERA-23 (ARB Sept. 27, 1996).

BACK PAY; LIABILITY ENDS WOULD EMPLOYMENT WOULD HAVE ENDED LAWFULLY
[N/E Digest XVI C 2 b i]

The period of an employer's liability for back pay ends when the employee's permanent employment would have ended for reasons independent of the violation found. A complainant working on a fixed term contract, however, may be entitled to back pay beyond that term if he or she establishes that the employment would have continued beyond the end of the contract. Artrip v. Ebasco Services, Inc. , 89-ERA-23 (ARB Sept. 27, 1996).

BACK PAY; PRESUMPTION OF LAST LAID OFF
[N/E Digest XVI C 2 b i]

In Artrip v. Ebasco Services, Inc. , 89-ERA-23 (ARB Sept. 27, 1996) , the ALJ applied the principle expressed in Nichols v. Bechtel Constr. Inc. , 87-ERA-44, slip op. at 9-10 (Sec'y Nov. 18, 1993), aff'd , 50 F.2d 926 (11th Cir. 1995), to apply an assumption that Complainant would have been the last laid off. Respondent proffered that the principles of Dougherty v. Barry , 869 F.2d 605, 614 (D.C. Cir. 1989), should be applied to reduce the award based on the odds that Complainant would not have been the one person retained.

In Dougherty , eight firefighters charged and proved discrimination when two other firefighters were promoted, and the court ruled that a pro rate back pay scheme was appropriate since each would not have received the promotion. In Artrip , however, the record did not establish that only one worker could possibly have continued past the date five of the six contract workers were laid off. The Board found that in view of the uncertainties in the record, the Nichols presumption of last laid off should apply.

BACK PAY; EXTENSION BEYOND LAWFUL LAYOFF PERIOD NOT APPROPRIATE WHEN CHANCES FOR REHIRE SPECULATIVE
[N/E Digest XVI C 2 b i]

In Artrip v. Ebasco Services, Inc. , 89-ERA-23 (ARB Sept. 27, 1996), after the fixed-term contract of employment ended on a job from which Complainant had been unlawfully denied referral, several workers were rehired, but there was no evidence of direct transfers or promises of future work. This was insufficient evidence to extend the back pay period for Complainant beyond the lawful layoff date.

DAMAGES; BACK PAY; SHORT TERM PROJECT; EVIDENCE OF CONTINUED EMPLOYMENT OF CONTRACTORS
[N/E DIGEST XVI C 2 b i]

On computing back pay award, the Administrative Review Board looked at similarly situated employees to determine whether Complainant's employment with Employer would have continued after the end of the contract. Complainant's contract was for an outage which actually lasted one month. The ALJ and Secretary both found that Employer regularly rehired or retained contract workers such as Complainant, and this evidence demonstrated that Complainant's employment would have continued after the completion of the original contract. Doyle v. Hydro Nuclear Services , 89-ERA-22 (ARB Sept. 6, 1996).

BACK PAY; CUT-OFF DATE BASED ON LAY-OFF
[N/E Digest XVI C 2 b i]

In Creekmore v. ABB Power Systems Energy Services, Inc., 93-ERA-24 (Dep. Sec'y Feb. 14, 1996, where the managers who took over the Complainant's work responsibilities were not laid off when the Respondent was sold, restructured and moved, the Respondent failed to demonstrate that the back pay award should be cut off at the time of the sale.

BACK PAY; PERIOD BEYOND ORIGINAL TERM OF EMPLOYMENT OF CONTRACT WORKER
[N/E Digest XVI C 2 b i]

In Doyle v. Hydro Nuclear Services , 89-ERA-22 (ALJ Nov. 7, 1995), the ALJ applied the analysis of Walker v. Ford Motor Co. , 684 F.2d 1355 (11th Cir. 1982) in computing back pay for a contract employee. Walker indicates that in cases of fixed term contracts, a complainant must initially introduce some evidence showing that the economic injury resulting from the discharge extended beyond the employment term. Walker , 684 F.2d at 1362. This proof may consist of no more than a showing that the particular complainant's contract had been renewed in the past, that contracts of similarly situated employees had been renewed, or that the employer had made a promise of continued employment. In Doyle , the evidence failed to show that the Complainant would have been rehired at the facility he was working at; however, the evidence also showed that similarly situated employees found work at other facilities under contract and that the Complainant would have found such work except for the Respondent's denial of unescorted access to the Complainant (which in effect, was a blacklisting). The ALJ concluded that the Respondent was liable for back pay beyond the original term of employment.

XVI C 2 b i BACK PAY; PROOF OF SUBSEQUENT LEGITIMATE LAY OFF

In Hoffman v. Bossert, 94-CAA-4 (Sec'y Sept. 19, 1995), there was evidence that the number of workers employed by the Respondent, a roofing company, varied with the season and the amount of work. It was possible that the Respondent may have legitimately laid off the Complainant at some time after the date of the illegitimate layoff. The Secretary directed that, on remand, if the parties could not agree on the amount of back pay owed, the ALJ shall take evidence and make findings on any such legitimate periods of lay off and the resulting amount of back pay.

[N/E Digest XVI C 2 b i]
BACK PAY; EVIDENCE OF LAYOFFS STANDING ALONE INSUFFICIENT TO ESTABLISH COMPLAINANT WOULD HAVE BEEN LAID OFF

Where Respondent presented evidence that its work force declined and expanded during the relevant back pay period, but did not show that layoffs were based strictly on seniority, or establish the seniority of the employees who were laid off and those who were retained, the Board in Hoffman v. Bossert , 94-CAA-4 (ARB Jan. 22, 1997), found that Respondent did not overcome a presumption that Complainant was entitled to back pay for the full period.

XVI C 2 b i Termination of entitlement when project ends

Where the Complainant's employment was as a construction worker for a contractor hired during the construction of the nuclear plant, which employment would have ended with completion of the plant construction, back pay entitlement ends at the end of the construction project or when the employment position was abolished.
Beck v. Daniel Construction Co., 86-ERA-26 (Sec'y Aug. 3, 1993) (remanding case to ALJ for determination of when Complainant would have been terminated from the position).

XVI C 2 b i Presumption of last laid off

Where an entire crew is laid off over time, but it is uncertain when the complainant would have been laid off, the complainant is entitled to a presumption that he would have been the last worker laid off. See Nichols v. Bechtel Construction, Inc., 87-ERA-44 (Sec'y Nov. 18, 1993).

XVI C 2 b i Last employee in work group laid off

On remand from the Secretary, the ALJ in Nichols v. Bechtel Construction, Inc., 87-ERA-44 (ALJ May 4, 1993), found that the Complainant was entitled to receive back pay only for the period ending when the last employee in his work group was let go on a lay off ( citing Blackburn v. Metric Constructors, Inc., 86-ERA-4 (Sec'y Oct. 4, 1991)). Although inclined to award back pay for a period during which coworkers from his work group were rehired, the ALJ found that the Complainant had failed to make a record on which such an award could be calculated, and therefore had failed to carry his burden on the issue.

XVI C 2 b i Back pay liability to date Complainant's position or comparable position no longer exists

In Sprague v. American Nuclear Resources, Inc., 92-ERA-37 (Sec'y Dec. 1, 1994), the Secretary determined that the Complainant was entitled to back pay from the date of discharge to the date of reinstatement to the position held on the day of discharge (tool accountability technician) or a comparable position (or the date of declination of reinstatement). The Secretary held, however, that if the Respondent demonstrates that there are no tool accountability technician or any comparable positions, back pay shall end on the date the tool accountability technician position ended.

XVI C 2 b i Back pay; duration

The Secretary has adopted for ERA cases the "long accepted rule of remedies in labor law that the period of an employer's liability ends when the employee's employment would have ended for reasons independent of the violation found. Thus, Complainant was entitled to back pay until the end of the project for which he was hired. The ALJ's extension of back pay liability beyond that time on the ground that because of Complainant's unlawful termination he was in a less favorable position than coworkers to be hired on another project with the employer was not accepted by the Secretary where the finding was based solely on Complainant's personal feelings that the employer would not rehire him. Although they may have seemed plausible, there were mere speculation. Further, Complainant presented no evidence to rebut the testimony of a supervisor that of the 45 electricians on the project from which Complainant was discharged, only two were employed on employer's next job. Blackburn v. Metric Constructors, Inc., 86-ERA-4 (Sec'y Oct. 30, 1991).

XVI C 2 b i Duration of temporary work assignment

Where the record revealed that Complainant had worked for Respondent as part of build-ups of staff during 1984-85, 1986 and in 1987, Complainant did not establish that the 1987 hiring was as a permanent employee, and Respondent showed that it made substantial reductions in work force as the outage ended, the Secretary found that even absent any discrimination, Complainant would have been laid off by the last day of lay offs related to the 1987 outage. Pillow v. Bechtel Construction, Inc., 87-ERA-35 (Sec'y July 19, 1993).

[Editor's note: Respondent showed that it laid off a total of 56 laborers, including Complainant, during the end of the outage period. It then held that number of employees between 38 and 44 for the remainder of 1987. It is not clear from the discussion whether the Secretary took into account the circumstances of the lay offs -- e.g., the staffing size prior to the build ups, whether lay offs were generally based on seniority, the composition of the remaining work force.]

XVI C 2 b i Duration of scheduled outage

A scheduled outage at a nuclear power plant involving defueling and refueling of the reactor. It is a time during which workers make repairs and modifications to the plant, and is a period of increased employment. Tritt v. Fluor Constructors, Inc., 88-ERA-29 (Sec'y Aug. 25, 1993); to the same effect Pillow v. Bechtel Construction, Inc., 87-ERA-35 (Sec'y July 19, 1993).

In Tritt v. Fluor Constructors, Inc., 88-ERA-29 (Sec'y Aug. 25, 1993), the Secretary adopted the ALJ's findings of fact, but came to a different legal conclusion -- that Respondent had violated the employee protection provision of the ERA. Since Complainant was hired to work during an outage that was coming to an end at the time of his discharge, Respondent was liable for back pay only until the date when Complainant's employment would have ended but for the unlawful discharge. The Secretary remanded to the ALJ for a determination on the calculation of back pay and a determination whether Complainant is entitled to compensatory damages. Complainant did not seek reinstatement.

XVI C 2 b i Entitlement only to point of legitimate lay off

Back pay awards are based on the earnings the employee would have received but for the discrimination. Thus, when an employee who was laid off for discriminatory reasons nevertheless would have been laid off for legitimate reasons, back pay would be cut off at the point of the legitimate layoff. Nichols v. Bechtel Construction, Inc., 87-ERA-44 (Sec'y Nov. 18, 1993).

XVI C 2 b i Back pay liability only until employment would have ended anyway

It is a long accepted rule of remedies in labor law that the period of an employer's liability ends when the employee's employment would have ended anyway for reasons independent of the violation found. See Walt Disney Productions, 48 N.L.R.B. No. 892 (1944), enf'd as modified, 146 F.2d 44 (9th Cir. 1944). But the cases require some explicit act or concrete event to cut off backpay or extinguish the right to reinstatement. In Knickerbocker Plastic Co., 132 N.L.R.B. No. 1209 (1961), for example, the National Labor Relations Board denied reinstatement to a discharged employee who had declined an explicit offer of reinstatement by the employer. See also Ford Motor Co. v. EEOC, 458 U.S. 219, 231-232 (1982). In Bourque v. Powell Electrical Co., 617 F.2d 61, 66 (5th Cir. 1980), an employee who proved wage discrimination was entitled to backpay only until the date she resigned.

The Secretary noted that, in contrast, the NLRB has "consistently . . . discounted statements, prior to a good faith offer of reinstatement, indicating unwillingness to accept reinstatement." Heinwick Motor, Inc., 166 N.L.R.B. No. 88 (1967), 1967 CCH NLRB 21,654, at 28,297. The Secretary then stated that the reasons for the NLRB rule in discharge cases were equally applicable to the case at bar -- the ALJ had found that the Complainant, who had been demoted as a result of his protected activity, was considering making a request to be relieved of his supervisory duties and recommended limiting the remedy to two weeks backpay so that the Complainant would not get a windfall. The Secretary quoted Heinwick Motors:

We are mindful of the fact that such statements may reflect only a momentary state of mind that is subject to change: prior to an offer of reinstatement, such statements are in the nature of answers to a hypothetical question; and the discriminatee's expression 'may have been made in the heat of dissatisfaction with his treatment by Respondent.'

Id. (footnotes omitted). A comment made to a co-worker is not the kind of explicit act or concrete event which is sufficient to toll an employer's backpay liability.

Francis v. Bogan, Inc., 86-ERA-8 (Sec'y Apr. 1, 1988).

XVI C 2 b ii Employee who falsified original application

In Atchison v. Brown & Root, Inc., 82-ERA-9 (Sec'y June 10, 1983), reversed on other grounds sub nom., Brown & Root v. Donovan, 747 F.2d 1029 (5th Cir. 1984), dismissed on remand (Sec'y Apr. 12, 1985), it was discovered that Complainant had misrepresented his educational qualifications for the job. The Secretary found that Respondent would have discharged Complainant as soon as it discovered the misrepresentation even if he had not engaged in protected activity. The Secretary stated that "[f]iling a complaint under the ERA, and even proof that the firing itself was improperly motivated, should not insulate [Complainant] from other, legitimate, management actions. Therefore, I do not think it would be appropriate, under my authority to order affirmative action to abate a violation found (29 C.F.R. 24.6(b)(2)), to require reinstatement of an employee who repeatedly misrepresented material facts about his background, or to order back pay beyond the date of discovery of the misrepresen- tation."

[Editor's note: It is not clear from either the Secretary or the ALJ's decisions how Respondent discovered the misrepresentation, but it was a couple months after Complainant was discharged. In this case, Respondent apparently did not advance an "after acquired evidence" defense for its burden of articulation, but only in regard to the extent of damages.

On appeal, the Fifth Circuit ruled that Complainant's internal complaints did not support an ERA employee protection complaint. Although the Secretary dismissed Atchinson's complaint on remand, in subsequent Fifth Circuit cases, the Secretary has declined to acquiesce in Brown & Root .]

[N/E Digest XVI C 2 b ii]
BACK PAY LIABILITY; TERMINATION ON DATE EMPLOYMENT WOULD HAVE ENDED FOR REASONS INDEPENDENT OF VIOLATION

Under both the ERA and the environmental whistleblower provisions, the period of an employer's liability for back pay ends when the employee's employment would have been terminated for reasons independent of the violation found. See Oliver v. Hydro-Vac Services, Inc. , 91-SWD-1 (ARB Jan. 6, 1998).

[N/E Digest XVI C 2 b ii]
RESPONDENT'S TERMINATION OF QUALITY ASSURANCE/QUALITY CONTROL DIVISION; EFFECT ON BACK PAY/REINSTATEMENT LIABILITY

Where Respondent had been sold and relocated, and its quality assurance/quality control (QA/QC) business effectively eliminated, all persons involved in the QA/QC functions laid off, and there was no substantially similar position for which Complainant is qualified under the new business structure, the ALJ recommended a holding that Respondent's liability for back pay and reinstatement terminated on the date Respondent's QA/QC was ended. In making this determination, the ALJ took into consideration whether QA/QC employees would have had transfer rights, and the Deputy Secretary's holding in a remand order that Respondent's decision to withdraw from the QA/QC business and to lay off staff was a legitimate business decision. Creekmore v. ABB Power Systems Energy Services, Inc. , 93-ERA-24 (ALJ Dec. 1, 1997).

BACK PAY; DEDUCTION OF UNEMPLOYMENT COMPENSATION; BOARD REJECTS VIEW THAT SUCH DEDUCTIONS ARE A MATTER FOR DISCRETION OF THE TRIAL COURT
[N/E Digest XVI C 2 c ii]

The Board in Artrip v. Ebasco Services, Inc. , 89-ERA-23 (ARB Sept. 27, 1996), noted a spilt among the circuits in discrimination cases over whether a deduction of unemployment compensation in regard to a back pay award should be prohibited or left to the discretion of the trial court. The Board noted that the instant case arose in the Fifth Circuit, which follows a minority view that such deductions are discretionary (the court also holds this view in regard to the collateral source rule). Observing that no court had addressed this issue under the ERA or similar whistleblower laws, and that the Secretary of Labor has consistently held that unemployment compensation is not deductible in such cases, the Board held that unemployment benefits are not deductible from gross back pay.

XVI C 2 b iii Unavailability for work -- offset

In some circumstances an employer may not be liable for back pay during periods that an unlawfully discharged employee is not available for work. In Williams v. TIW Fabrication & achining, Inc., 88-SWD-3 (Sec'y June 24, 1992), the Respondent contended that the Complainant was entitled to no back pay because he was permanently disabled from the time of his layoff. The record, however, did not substantiate permanent disability until a latter date, and the Secretary declined to disallow back pay.

XVI C 2 b iii Back pay where joint employer refused to allow complainant on job site

In Adams v. Coastal Production Operators, Inc., 89- ERA-3 (Sec'y Aug. 5, 1992), the complainant had complained to the employees of a waste disposal company about an oil spill he had observed. The complainant was the skipper of a crew boat supplied under contract to the waste disposal company by the respondent. Before the Area Director, both the respondent and the waste disposal company had been found in violation of the employee protection provision of the FWPCA. The waste disposal company did not appeal the decision, and the finding as to it became final.

The respondent contended that it did not owe the complainant any back pay because it did not have any work for the complainant after the waste disposal company had ordered him off the job. The Secretary found that, since the Area Director's finding of a violation of the Act was final as to the waste disposal company, the respondent was foreclosed from arguing that the respondent could not have assigned the complainant to the waste disposal job after the date he was ordered off the site. See Palmer v. Western Truck Manpower, Inc., 85-STA-16 (Sec'y Mar. 13, 1992), slip op. at 3-6, appeal docketed, No. 92-70231 (9th Cir. Apr. 13, 1992) (joint employer that has not knowingly participated in other employer's violation of employee protection provision of STAA may be held liable for unlawful discrimination); Hill & Ottney v. Tennessee Valley Authority, 87-ERA-23 and 24 (Sec'y May 24, 1989), slip op. at 2-4 (under analogous employee protection provision, respondent may be liable for discrimination against employees of a contractor). Accordingly, the respondent was liable for back pay for the period between discharge and the end of the job with the waste disposal company.

[Editor's note: Adams v. Coastal Production Operators, Inc., 89-ERA-3, did not arise under the Energy Reorganization Act, although the OALJ gave it an "ERA" docket number. It was actually a Federal Water Pollution Control Act case.]

XVI C 2 b iv Back pay only to date of refusal of reinstatement

Refusal of an unconditional offer of reinstatement to a substantially equivalent position constitutes a breach of the obligation to mitigate damages. Thus, in Williams v. TIW Fabrication & Machining, Inc., 88-SWD-3 (Sec'y June 24, 1992), the Complainant was entitled to back pay only until the date he declined to return to work.

[Nuclear & Environmental Digest XVI C 2 b v]
MITIGATION OF DAMAGES; CONSTRUCTIVE DISCHARGE

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 held that "An employee who has been constructively discharged usually has the burden of mitigating his damages by seeking suitable employment. ... The respondent has the burden of establishing that the back pay award should be reduced because the complainant did not exercise diligence in seeking and obtaining other employment. ... Slip op. at 27 (citations omitted). In Berkman Respondent did not submit any evidence to prove that Complainant was able to work for pay, and therefore, did not meet its burden to show a failure to mitigate damages.

[Nuclear & Environmental Whistleblower Digest XVI C 2 b v]
BACKPAY; MITIGATION OF DAMAGES

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 Eleventh Circuit reviewed the law in relation to the mitigation of damages:

   The ERA does not explicitly require victims of employment discrimination to attempt to mitigate damages, but the Secretary and the ARB have consistently imposed such a requirement, in keeping with the general common law "avoidable consequences" rule and the parallel body of damages law developed under other anti discrimination statutes. Georgia Power bears the burden of proving that Hobby did not properly mitigate. ... To meet this burden, it must show that (1) there were substantially equivalent positions available; and (2) Hobby failed to use reasonable diligence in seeking these positions.... "Substantially equivalent employment" would be a position providing the same promotional opportunities, compensation, job responsibilities, working conditions, and status....

   Just as the burden of proving a failure to mitigate falls on Georgia Power, so the "benefit of the doubt" ordinarily goes to Hobby. As the Sixth Circuit has observed,

A claimant is only required to make reasonable efforts to mitigate damages, and is not held to the highest standards of diligence. The claimant's burden is not onerous, and does not require him to be successful in mitigation. The reasonableness of the effort to find substantially equivalent employment should be evaluated in light of the individual characteristics of the claimant and the job market.

Rasimas , 714 F.2d at 624 (citations omitted).

* * *

   The ARB recognized that the lack of a diligent search has been viewed as dispositive by our precedent in Title VII cases. See Weaver v. Casa Gallardo, Inc. , 922 F.2d 1515 (11th Cir. 1991), superseded by statute on other grounds. The ARB, however, concluded:

Both Weaver and Sellers were cases under Title VII of the Civil Rights Act of 1964, and not under the Energy Reorganization Act. Although the Secretary and this Board frequently look to case law under Title VII for its persuasive authority (see discussion at 16, supra), the anti discrimination language of Title VII is different from the ERA's employee protection text. In addition, Title VII is designed primarily to vindicate private rights rather than promote the public health and safety enforcement goal of the ERA whistleblower provisions. As such, we do not find the standard articulated in Weaver to be controlling in this case; however, we conclude that even under the 2 pronged standard adopted by the Eleventh Circuit in Weaver , Georgia Power's argument fails because Hobby actively searched for alternative employment, albeit with limited success.

Hobby , No. 90 ERA 30, slip op. at 26 27 (ARB Feb. 9, 2001). As the above quotation demonstrates, it is not necessary, however, for the Court to determine whether Weaver applies to ERA cases. As the ARB held, even were it to apply Weaver , Georgia Power has failed to demonstrate that Hobby did not mitigate his damages. On appeal, Georgia Power has failed to show that such factual finding was not supported by substantial evidence.

Slip op. at 20 22 (some citations omitted).

[Nuclear & Environmental Digest XVI C 2 b v]
MITIGATION OF DAMAGES

A respondent bears the burden of proving that the complainant did not properly mitigate damages. To meet this burden, the respondent must show that (1) there were substantially equivalent positions available; and (2) the complainant failed to use reasonable diligence in seeking these positions. The benefit of a doubt ordinarily goes to the complainant.

In Hobby v. Georgia Power Co. , ARB No. 98-166, ALJ No. 1990-ERA-30 (ARB Feb. 9, 2001), Respondent presented a study of employment opportunities, and Complainant presented several witnesses to counter employer's study. The ARB agreed with the ALJ's findings that Respondent could not meet its burden merely by pointing out that Complainant did not apply to every available employer. The ARB agreed with the ALJ that Respondent's study's premise that whistleblowing activity would be considered a positive trait in job applicants was incredible, and therefore cast doubt on the value of the researcher's research and testimony.

The ARB declined to follow Title VII authority indicating that if an employer proves that the employee has not made reasonable efforts to obtain work, it is not necessary for the employer to also establish the availability of substantially comparable work, distinguishing those cases on the ground that Title VII is designed primarily to vindicate private rights rather than promote the public health and safety enforcement goal of the ERA whistleblower provisions, and noting that one legal scholar has questioned this alternative approach for proving a failure to mitigate damages.

In regard to whether Complainant used reasonable diligence, the ARB thoroughly reviewed Complainant's job search efforts, noting that Complainant had sought enforcement of the Secretary's 1995 merits decision in federal court, and found that this was not a case where the complainant abandoned his connection to the job market. The ARB noted that Complainant's job search had been considerably complicated by his abrupt termination from a senior position.

[Nuclear & Environmental Digest XVI C 2 b v]
MITIGATION; WHEN A COMPLAINANT MUST "LOWER HIS OR HER SIGHTS"

In Hobby v. Georgia Power Co. , ARB No. 98-166, ALJ No. 1990-ERA-30 (ARB Feb. 9, 2001), Respondent argued that back pay should be reduced because Complainant waited too long to "lower his sights" and seek positions outside the nuclear power industry. The ARB noted that a complainant who is unsuccessful in his or her search for an equivalent job must eventually seek employment in another field, but that where Complainant had spent many years working his way "up the ladder" into senior corporate management positions, he could not have been expected precipitously to "go into another line of work, accept a demotion, or take a demeaning position." Thus, in the case sub judice it was perfectly reasonable for Complainant to keep searching for an equivalent for an extended period.

XVI C 2 c i Interim earnings not offset if complainant would have been able to hold the interim job in the absence of discrimination

Back pay is offset by interim earnings, but not by unemployment compensation. There is no offset for interim earnings, however, for positions the complainant would have been able to hold even if the respondent had not discriminated against the complainant. Sprague v. American Nuclear Resources, Inc., 92-ERA-37 (Sec'y Dec. 1, 1994) (evidence showed that the Complainant could have done "odds and ends" jobs because of the periodic work schedule if the position held with the Respondent; employees worked for several weeks, followed by several weeks of lay off).

[Nuclear & Environmental Digest XVI C 2 c i]
RECONSIDERATION; BACK PAY; EVIDENCE THAT COMPLAINANT OBTAINED A NEW JOB; ORDER TO PRODUCE INCOME TAX RETURNS

In Jones v. EG & G Defense Materials, Inc. , 1995-CAA-3 (ARB Dec. 24, 1998), the ARB amended a back pay order on reconsideration to permit the deduction of subsequent earnings where Respondent presented evidence that Complainant had obtained a new job. The ARB ordered that Complainant produce copies of his federal income tax returns for the calculation.

[N/E Digest XVI C 2 c i]
BACK PAY; DEDUCTION OF OTHER SETTLEMENT AMOUNTS

In Saporito v. Florida Power & Light Co. , 89-ERA-7 and 17 (ALJ Mar. 12, 1997), the ALJ considered what amounts, if any, could be deducted from a back pay award for settlements of other whistleblower cases. The ALJ accepted Respondent's argument that amounts designated in settlement agreements as back pay awards should be deducted from a back pay award, but rejected the contention that front pay awards should be similarly deducted. In addition, where Complainant did not have a current job, but described himself as an "investor", the ALJ accepted Respondent's contention that capital gains and dividends received by Complainant from his investments should also be deducted from a back pay award.

[Nuclear & Environmental Digest XVI C 2 c i]
BACK WAGES; OFFSET FOR INTERIM EARNINGS; CREDIT DURING QUARTER EARNED FOR PURPOSES OF COMPUTATION OF INTEREST

In Hobby v. Georgia Power Co. , ARB No. 98-166, ALJ No. 1990-ERA-30 (ARB Feb. 9, 2001), the ARB held that "[f]or purposes of computing and compounding interest, all interim earnings shall be credited against Georgia Power's gross back pay obligation during the quarter in which the interim earnings were earned." Slip op. at 42 (footnote omitted).

BACKPAY; CALCULATION OF INTERIM EARNINGS; USE OF RATIO TO APPROXIMATE EARNINGS DURING PART OF YEAR
[N/E Digest XVI C 2 c i]

In Artrip v. Ebasco Services, Inc. , 89-ERA-23 (ARB Sept. 27, 1996), Complainant's interim earnings were based on his income tax returns, which did not reflect the precise amount he would have earned during the relevant ten month period. The Board indicated that the ALJ's method of multiplying Complainant's yearly earnings by the decimal .833 (the ratio of ten months to twelve months) to approximate the interim earnings was reasonable.

DAMAGES; INTERIM EARNINGS; DUTY TO MITIGATE
[N/E DIGEST XVI C 2 c i]

itigation of damages by seeking suitable employment is a duty of victims of employment discrimination. Interim earnings or an amount earnable with reasonable diligence are reductions to a back pay award. A complainant may be "expected to check want ads, register with employment agencies, and discuss potential opportunities with friends and acquaintances." Doyle v. Hydro Nuclear Services , 89-ERA-22 (ARB Sept. 6, 1996), quoting Helbing v. Unclaimed Salvage and Freight Co., Inc. , 489 F.Supp. 956, 963 (E.D. Pa. 1989), quoting Sprogis v. United Air Lines , 517 F.2d 387, 392 (7th Cir. 1975).

Although Complainant in Doyle only earned $3000 in six years, the Board found that he made diligent efforts to secure employment where he could not find employment in the nuclear industry due to the discrimination, and where his psychological state made it difficult for him to find and keep jobs in other fields. A psychologist's testimony about post-traumatic stress was unrefuted, and it was understandable that Complainant did not have great success in finding alternative employment. Employer could deduct all amounts Complainant earned in interim employment through the date of the final judgment.

XVI C 2 c i Interim earnings

Interim earnings at a replacement job are deducted from back pay awards. Williams v. TIW Fabrication & Machining, Inc., 88-SWD-3 (Sec'y June 24, 1992).

XVI. C. 2. c. i. Deduction of interim earnings in the calculation of back pay award

In Willy v. The Coastal Corp., 85-CAA-1 (Sec'y June 1, 1994), the Secretary found that the Complainant's back pay should be offset by any interim earnings, and his right to back pay may have been cut off by his actions after he was fired by Respondent, under principles adopted by the Secretary in whistleblower and other antidiscrimination cases.

See, e.g. , Williams v. TIW Fabrication and Machining, Inc. , Case No. 88-SWD-3, Sec. Dec. Jun. 24, 1992, slip op. at 12-15; Office of Federal Contract Compliance Programs v. Washington Metropolitan Area Transit Authority , Case No. 84-OFC-8, Aug. 23, 1989, slip op. at 3-4, 5-6, 8-9, rev'd on other grounds , Washington Metro. Area Transit Auth. v. DeArment , 55 Empl. Prac. Dec. (CCH) 40,507 (D.D.C. 1991); Nelson v. Walker Freight Lines, Inc. , Case No. 87-STA-24, Sec. Dec. Jan. 15, 1988, slip op. at 4-5; Cram v. Pullman- Higgins Co. , Case No. 84-ERA-17, Sec. Dec. Jan. 14, 1985, slip op. at 2-3.

Specifically, the calculation of back pay was to be based on the difference between what Complainant would have earned if he had continued to be employed by Respondent and the amount he earned or with reasonable diligence could have earned from the date of discharge to the date of his discharge from a subsequent employer.

Since Complainant did not leave the subsequent employer because the work was not comparable to the environmental work he was doing for Respondent, but for "paying insufficient attention to his duties," the Secretary found that his right to back pay was cut off at the time he stopped working for the subsequent employer. See OFCCP v. WMATA , slip op. at 8-9, and cases cited therein.

XVI.C.2.c.i. Interim earnings from collateral source

In Marcus v. United States Environmental Protection Agency, 92-TSC-5 (Sec'y Sept. 27, 1994), the Secretary remanded the case to the ALJ for findings of fact on damages and losses, and specifically on whether Respondent may deduct Complainant's outside consulting fees from the back pay award as "interim earnings" or whether these fees represent income from a collateral source which may not be deducted.

The Secretary noted that deductible "interim earnings" are earnings that a complainant could not have earned if he had not suffered unlawful discrimination. In Marcus , Complainant alleged that he would have earned consulting fees in addition to earning his full salary had he not been discharged. As demonstrated in Schlei & Grossman's Employment Discrimination Law (2d ed. Supp. 1989) at 537 n.71, the distinction becomes apparent upon comparing, for example,

• Whatley v. Skaggs Cos. , 707 F.2d 1129 (10th Cir.), cert. denied, 464 U.S. 938 (1983), where the prior position would have precluded moonlighting, and

• Nash v. City of Houston Civic Center, 805 F. Supp. 1030, aff'd in part and rev'd in part, 800 F.2d 491 (5th Cir 1986), where the discharged employee's earnings from running his own business were adjudged interim earnings to be deducted from the back pay award, with

• Hawks v. Ingersoll Johnson Steel Co., 38 Fair Empl. Prac. Cas. (BNA) 93 (S.D. Ind. 1984), where the earnings from a part-time job held before and after the employee's discharge were not deducted from his back pay award because the income was received regardless of the employee's employment status with the company,

• Lilly v. City of Beckley, W. Va., 615 F. Supp. 137 (S.D. W. Va. 1985), aff'd , 797 F.2d 191 (4th Cir. 1986), where a job applicant's earnings from secondary employment were not offset from the back pay award because he established that the earnings could have been maintained had he been hired, and

• Behlar v. Smith, 719 F.2d 950 (8th Cir. 1983), cert. denied, 466 U.S. 958 (1984), where monies earned by female faculty members during the summer and in evenings during the school term were not offset against their back pay awards.

XVI C 2 c i Back pay; deductions

Interim earnings in replacement employment should be deducted from a back pay award. Blackburn v. Metric Constructors, Inc., 86-ERA-4 (Sec'y Oct. 30, 1991).

XVI C 2 c ii Unemployment collected by Complainant

In Rexroat v. City of New Albany, Indiana, 85-WPC-3 (ALJ Apr. 20, 1987), settled while on review before the Secretary, (Sec'y June 29, 1989), after the Complainant demonstrated that he was discriminatorily dismissed from his employment because of a protected activity, he was reinstated to his former position with full back pay, interest, and fringe benefits and was reimbursed for all his costs and expenses including reasonable attorney fees. During the time Complanant was unemployed, he collected $2574 in unemployment. The ALJ detemined that unemployment benefits paid to Complainant were not earnings but were moneys received from a collateral source which were not deductable from Complainant's award of damages. In making his determination, the ALJ relied upon on National Labor Relations Board v. Gullett Gin Co., 34 U.S. 361, 71 S.Ct. 337 (1951), in which the Court determined that the NLRB was correct in refusing to deduct from back-pay, sums paid to discriminatorily discharged emloyees as unemployment compensation by a state agency.

[Nuclear & Environmental Digest XVI C 2 c ii]
BACK PAY; SEVERANCE PAY IS DEDUCTED

Back pay awards should be reduced by the amount received by the complainant as severance pay. Jones v. EG & G Defense aterials, Inc. ,1995-CAA-3, slip op. at 19 (ARB Sept. 29, 1998).

[N/E Digest XVI C 2 c ii]
BACK PAY; UNEMPLOYMENT BENEFITS ARE NOT DEDUCTIBLE

Unemployment benefits are not deductible from gross back pay. Keene v. Ebasco Constructors, Inc. , 95-ERA-4 (ARB Feb. 19, 1997), citing Artrip v. Ebasco Services, Inc. , 89-ERA-23, slip op. at 4-5 (ARB Sept. 27, 1996).

BACK PAY; SEVERANCE PAY AS OFFSET
[N/E Digest XVI C 2 c ii]

Severance pay offsets the amount of a back pay award. Creekmore v. ABB Power Systems Energy Services, Inc., 93-ERA-24 (Dep. Sec'y Feb. 14, 1996).

XVI C 2 c ii Stipulation of nonentitlement to unemployment benefits

In Nichols v. Bechtel Construction, Inc., 87-ERA-44 (Sec'y Nov. 18, 1993), Complainant stipulated that the amount of unemployment compensation benefits he received would be deducted from the back pay award. Noting that the Secretary normally does not deduct unemployment compensation from a back pay award, the Secretary nonetheless found that the stipulation was not so contrary to public policy as to warrant nonenforcement in the instant case. The Secretary noted that absence a provision in a stipulation that might be contrary to public policy, a stipulation is like a settlement or a contract and the parties should be held to their bargain.

• Goldstein v. Ebasco Constructors, Inc., 86-ERA-36 (Sec'y Apr. 7, 1992), rev'd on other grounds, Ebasco Constructors, Inc. v. Martin, No. 92-4576 (5th Cir. Feb. 19, 1993)

• See also Graefenhain v. Pabst Brewing Co., 870 F.2d 1198, 1206 (7th Cir. 1989) (stipulation binding unless relief from stipulation necessary to prevent manifest injustice, or stipulation entered into through inadvertence or based on erroneous view of the facts or law).

XVI C 2 c ii Unemployment compensation

Unemployment compensation is not deducted from a back pay award. Williams v. TIW Fabrication & Machining, Inc., 88-SWD-3 (Sec'y June 24, 1992) ( citing Enstrom v. Beech Aircraft Corp., 712 F. Supp. 841, 853 (D. Kan. 1989) ("[a] statutory benefit to plaintiff should not reduce the judgment against defendant from its wrongful conduct")).

XVI C 2 c iii Self- employment

Back pay liability does not cease on the date that a state agency rejects a complainant's claim for unemployment compensation on the grounds that the complainant was self-employed and not seeking a job. Even if the complainant were employed in a similar job at another power plant, he would be entitled to back pay if he were earning less than he did with the respondent. Only payment of the difference would make such a complainant whole.

Cram v. Pullman-Higgins Co., 84-ERA-17 (Sec'y Jan. 14, 1985).

BACK PAY; DEDUCTION FOR SELF-EMPLOYMENT PENSION CONTRIBUTIONS
[N/E Digest XVI C 2 c iii]

Pension income received by a complainant during a back pay period from another source, as opposed to earnings from alternative interim employment, are not deducted from back pay awards. Artrip v. Ebasco Services, Inc. , 89-ERA-23 (ARB Sept. 27, 1996). In Artrip , however, the Board agreed with Respondent that a sum earned by Complainant during the relevant period, but allotted by him to self-employment pension plan, should be deducted. The Board stated: "This ... is not a case in which the complainant received pension benefits as assistance during the back pay period based on entitled [sic] in the thermolag job during the same period."

XVI C 2 c iv Distinction between workers' compensation award for lost wages versus reparation for a physical injury

A lump sum permanent disability settlement is not deductible from a back pay award in the absence of proof that the complainant's workers' compensation benefits were designed as compensation for lost wages for the particular back pay period at issue.

Although workers' compensation awards that are identifiable as compensation for lost wages during a back pay period may be deducted from a back pay award, an award in reparation of permanent physical injury is not compensation for loss of wages during a particular period and is not deductible. This distinction has been explained as follows:

"temporary disability payments are a substitute for lost wages during the temporary disability period, while permanent disability is for permanent bodily impairment and is designed to indemnify for the injury employee's impairment of future earning capacity or diminished ability to compete in the open labor market." Canova v. NLRB, 708 F.2d 1498 (9th Cir. 1983), 1504, quoting Russell v. Bankers Life Co., 120 Cal. Rptr. 627, 634 (1975).

Williams v. TIW Fabrication & Machining, Inc., 88-SWD-3 (Sec'y June 24, 1992).

[Nuclear & Environmental Digest XVI C 2 c iv]
BACK PAY; DISABILITY RETIREMENT PAYMENTS ARE DEDUCTED

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 held that disability retirement payments are deducted from a back pay award.

BACK PAY; PERIOD COMPLAINANT COULD NOT WORK DUE TO JOB RELATED INJURY
[N/E Digest XVI C 2 c iv]

In Smith v. Littenberg , 92-ERA-52 (Sec'y Sept. 6, 1995), the Complainant was receiving temporary total disability between the period of his discharge by the Respondents and his starting a new job. The disability was unrelated to the employment discrimination. The Secretary held that even though the Complainant would not have been able to work during the back pay period, "[a]s ERA violators ... Respondents should not receive the benefit of owing no back pay due to [the Complainant's] work place injury." Slip op. at 5. Thus, Respondents were ordered to pay the amount of salary that is above the payments for temporary total disability; the amount paid for temporary total disability was compensation for lost wages, and therefore deductible from the back pay award. The Secretary noted, however, that the amount Complainant received as settlement for permanent partial disability was not deductible from the back pay award.

XVI C 2 c v Duty to mitigate damages; respondent's burden

Evidence that the complainant failed to mitigate damages will reduce the amount of the back pay owed. The respondent has the burden of establishing that the back pay award should be reduced because the complainant did not exercise diligence in seeking and obtaining other employment. West v. Systems Applications International, 94-CAA-15 (Sec'y Apr. 19, 1995).

[Nuclear & Environmental Digest XVI C 2 c v]
BACK PAY; MITIGATION OF DAMAGES; BURDEN OF PROOF ON RESPONDENT

In Timmons v. Franklin Electric Coop. , 1997-SWD-2 (ARB Dec. 1, 1998), the ALJ found that Complainant could have found alternative work within eight weeks of his termination from Respondent's employment had he exercised reasonable diligence. The ARB, however, found that the ALJ did not apply the correct legal standard because the burden of proof on mitigation is on Respondent. Complainant had put on evidence indicating that he had sought alternative employment (through union locals), accepted suitable employment when it was presented (self-employment in logging and sawmills), and remained available for employment even while engaged in building his house ("... if a good job had come along where I could make money, I would have took the job and hired someone to finish my house."). Respondent failed to counter this evidence, which the ARB found to be a serious omission. The ARB distinguished this scenario from a case where the complainant makes no effort to obtain suitable employment during the back pay period.

[Nuclear & Environmental Digest XVI C 2 c v]
MITIGATION; REASONABLE EFFORTS; REASONABLENESS OF SELF- EMPLOYMENT

Victims of employment discrimination have the duty to mitigate damages by seeking suitable employment. Reasonable efforts to find employment include checking want ads, registering with the state employment agency, and using personal contacts. In Jones v. EG & G Defense Materials, Inc. ,1995-CAA-3 (ARB Sept. 29, 1998), Respondent contended that Complainant failed to mitigate damages when, after too short a job search, he unreasonably chose to gamble on self employment (which resulted in no salary or income for two calendar years -- up to the time of the close of the record before the ALJ). The ARB quoted Smith v. Great American Restaurants, Inc. , 969 F.2d 430, 438 (7th Cir. 1992), for the proposition that "self employment can constitute employment for purposes of mitigating damages, as long as the self employment was a reasonable alternative to finding other comparable employment." The ARB indicated that the respondent has the burden of showing that a complainant's self employment was an unreasonable withdrawal from the job market, and found that Respondent had failed to do so on the evidence of record.

[N/E Digest XVI C 2 c v]
MITIGATION OF DAMAGES; SELF-EMPLOYMENT NOT PRODUCING INCOME

In Hoffman v. Bossert , 94-CAA-4 (ARB Jan. 22, 1997) , Complainant became self-employed as a partner in a landscaping business subsequent to his discriminatory lay-off by Respondent, and stated that he did not earn any business income, other wages, or salaries between that date and the date of his affidavit. The Board considered whether self-employment cut off Complainant's entitlement to back pay. The Board wrote:

In discrimination cases, although a complainant has a duty to exercise reasonable diligence in attempting to mitigate damages by finding comparable work, the defendant "has the burden of proving that the plaintiff has failed to discharge its duty." Smith v. Great American Restaurants, Inc., 969 F.2d 430, 438 (7th Cir. 1992). A court has noted that "[s]elf employment can constitute employment for purposes of mitigating damages, as long as the self-employment was a reasonable alternative to finding other comparable employment." Id.

This record lacks sufficient evidence to determine whether Hoffman's self-employment was a reasonable alternative to finding other employment. Respondent Boss had the burden to establish that Hoffman's self-employment constituted a failure to mitigate damages, but introduced no evidence on the subject. Therefore, employing the applicable burden of proof, we find that Boss has not established that Hoffman failed to discharge his duty of mitigation when he became self-employed. Accordingly, the back pay continues to accrue... [until Complainant begins to earn business income].

DAMAGES; INTERIM EARNINGS; DUTY TO MITIGATE
[N/E DIGEST XVI C 2 c v]

itigation of damages by seeking suitable employment is a duty of victims of employment discrimination. Interim earnings or an amount earnable with reasonable diligence are reductions to a back pay award. A complainant may be "expected to check want ads, register with employment agencies, and discuss potential opportunities with friends and acquaintances." Doyle v. Hydro Nuclear Services , 89-ERA-22 (ARB Sept. 6, 1996), quoting Helbing v. Unclaimed Salvage and Freight Co., Inc. , 489 F.Supp. 956, 963 (E.D. Pa. 1989), quoting Sprogis v. United Air Lines , 517 F.2d 387, 392 (7th Cir. 1975).

Although Complainant in Doyle only earned $3000 in six years, the Board found that he made diligent efforts to secure employment where he could not find employment in the nuclear industry due to the discrimination, and where his psychological state made it difficult for him to find and keep jobs in other fields. A psychologist's testimony about post-traumatic stress was unrefuted, and it was understandable that Complainant did not have great success in finding alternative employment. Employer could deduct all amounts Complainant earned in interim employment through the date of the final judgment.

DAMAGES; FAILURE TO MITIGATE
[N/E Digest XVI C 2 c v]

In Creekmore v. ABB Power Systems Energy Services, Inc., 93-ERA-24 (Dep. Sec'y Feb. 14, 1996), the Complainant was scheduled for an interview with another company owned by the Respondent, but declined the interview after he was offered another job and had to accept or reject the offer prior to the date of the interview with Respondent's company. The other job paid less. The Deputy Secretary rejected the Respondent's contention that this constituted a failure to mitigate, quoting Ford v. Nicks , 866 F.2d 865, 873 (6th Cir. 1989) (citing Rasimus v. Michigan Dept. of Mental Health , 714 F.2d 614, 624 (6th Cir. 1983), cert. denied , 466 U.S. 950 (1984)): "An employee is not required to go to heroic lengths in attempting to mitigate his damages, but only to take reasonable steps to do so."

XVI C 2 c v Complainant's quitting of job or accepting of lower paying job as a matter of principle; effect on damages

Where an employee is demoted, and rather than accept the demotion decides to quit, unless constructively discharged, the employee is not eligible for post-resignation damages and back pay or for reinstatement. The employee's decision to quit, however, goes solely to the issue of damages and not to whether there was discrimination.

Similarly, where the employee accepts a lower paying job that the one initially offered, that he further damaged himself does not eliminate the discrimination, although it would limit his recovery. Harrison v. Stone & Webster Engineering Group, 93-ERA-44 (Sec'y Aug. 22, 1995) (Complainant, as a matter of principle, took a journeyman position rather than take a foreman position from a current foreman; in his order, the Secretary limited the back pay award to the difference between the Complainant's lead foreman and a regular foreman's wages).

XVI C 2 c vi [Nuclear and Environmental Whistleblower Digest XVI C 2 c vi]
BACK PAY; ENHANCEMENT FOR TAX CONSEQUENCES OF LUMP SUM PAYMENT

In Doyle v. Hydro Nuclear Services , ARB Nos. 99-041, 99-042, and 00-012, ALJ No. 1989-ERA-22 (ARB ay 17, 2000), the ARB held that "a complainant is entitled to an enlargement of the back pay award to reflect the adverse tax consequences of receiving a lump sum payment that represents many years of back pay." The ARB, however, also held that "the plaintiff the burden of providing credible evidence of the calculation of the difference in tax payments between receiving back pay as a lump sum and receiving the pay in the various years at issue. . . . [A] failure to provide evidence on the tax enhancement calculation generally is held against the plaintiff who seeks the enhancement." In Doyle , the ARB concluded that Complainant had not met this burden, and therefore denied his requested enhancement of back pay to allow for tax consequences.

[Nuclear & Environmental Digest XVI C 2 c vi]
DAMAGES; TAX PENALTY FOR EARLY DISTRIBUTION OF IRA ACCOUNT

In Hobby v. Georgia Power Co. , ARB No. 98-166, ALJ No. 1990-ERA-30 (ARB Feb. 9, 2001), Respondent was required to reimburse Complainant for tax penalties resulting from early distribution of Complainant's stock and IRA account, plus interest.

XVI C 2 d Entitlement to shift deferential

In Pillow v. Bechtel Construction, Inc., 87-ERA-35 (Sec'y July 19, 1993), the Secretary found that Complainant was entitled to pay as a night shift worker for the period from his lay off to the date he would have been laid off absent discrimination -- including overtime pay. In Pillow , Complainant had been transferred from night shift to day shift in part based on discriminatory reasons, and thereby lost eligibility for certain overtime work.

[Nuclear & Environmental Whistleblower Digest XVI C 2 d]
BACKPAY; COMPLAINANT SHOULD NOT BE PENALIZED FOR OVERTIME EARNINGS

A backpay award should not be reduced for an employee who is paid by the hour and works overtime. Thus, in Moder v. Village of Jackson, Wisconsin , ARB Nos. 01-095 and 02-039, ALJ No. 2000-WPC-5 (ARB June 30, 2003), the ALJ erred in calculating backpay based on a memorandum showing Complainant's actual earnings for the relevant period and the salary of the position for which Complainant was illegally passed over, where Complainant's actual earnings included overtime pay. Rather, the ALJ should have compared the base pay for both positions.

[Nuclear & Environmental Digest XVI C 2 d]
BACK WAGES; OFFSET INCLUDES OVERTIME

In Hobby v. Georgia Power Co. , ARB No. 98-166, ALJ No. 1990-ERA-30 (ARB Feb. 9, 2001), the ARB rejected Complainant's argument that work performed for a second company after regular working hours for his primary employer should be excluded from the back pay offset calculation. The Board held that "[b]ecause these monies were nevertheless "interim earnings," we include this amount in the interim earnings calculation."

DAMAGES; HYPOTHETICAL EMPLOYMENT HISTORY; PROMOTIONS
[N/E DIGEST XVI C 2 d]

Back pay should include a promotion to which a complainant was entitled. In Doyle v. Hydro Nuclear Services , 89-ERA-22 (ARB Sept. 6, 1996), however, Complainant did not show that he was entitled to a promotion to a health physics technician, and he was not entitled to pack pay based on a "lost" promotion.

DAMAGES; HYPOTHETICAL EMPLOYMENT HISTORY; SALARY INCREASES
[N/E DIGEST XVI C 2 d]

Recognizing that back pay normally includes regular annual increases that an employee would receive absent the discrimination, the Board found that Complainant was entitled to receive back pay calculated according to the average hourly amount earned by similarly situated employees in the nationwide nuclear industry in each year since his discrimination. Doyle v. Hydro Nuclear Services , 89-ERA-22 (ARB Sept. 6, 1996).

BACKPAY; ENTITLEMENT TO SALARY INCREASES
[N/E Digest XVI C 2 d]

The calculation of backpay should include any salary increases that reasonably would have occurred in the period between the complainant's discharge and his or her reinstatement.

See Mosbaugh v. Georgia Power Co., 91-ERA-1 and 11 (Sec'y Nov. 20, 1995).

XVI C 2 d. Calculation of overtime

Where there was evidence that at the time of layoff overtime was common, it was appropriate for the ALJ to use months during which the overtime was common to project an average monthly wage rather than Complainant's entire work history. Nichols v. Bechtel Construction, Inc., 87-ERA-44 (Sec'y Nov. 18, 1993).

XVI C 2 e Interest

The fact that the ERA does not expressly provide for interest on back pay does not preclude it. Back pay awards are designed to make whole the employees who has suffered economic loss as a result of an employer's illegal discrimination. The assessment of prejudgment interest is necessary to achieve this end. Prejudgment interest on back wages recovered in litigation before the Department of Labor is calculated, in accordance with 29 C.F.R. § 20.58(a), at the rate specified in the Internal Revenue Code, 26 U.S.C. § 6621. The employer is not to be relieved of interest on a back pay award because of the time elapsed during adjudication of the complaint. See Palmer v. Western Truck Manpower, Inc., 85-STA-16 (Sec'y Jan. 26, 1990) (where employer has the use of money during the period of litigation, employer is not unfairly prejudiced).

Blackburn v. Metric Constructors, Inc., 86-ERA-4 (Sec'y Oct. 30, 1991).

[Nuclear and Environmental Whistleblower Digest XVI C 2 e]
BACK PAY AND FRONT PAY; POST-JUDGMENT INTEREST

In Doyle v. Hydro Nuclear Services , ARB Nos. 99-041, 99-042, and 00-012, ALJ No. 1989-ERA-22 (ARB ay 17, 2000), the ARB observed that "[t]he usual interest rate employed on back pay awards under ... whistleblower provisions is the interest rate for underpayment of federal taxes, set forth at 26 U.S.C. §6621(a)(2) (short-term Federal rate plus three percentage points)." Id . @ 20 (citations omitted). The ARB held that in whistleblower cases, it awards the same rate of interest on back pay awards, both pre- and post-judgment that is, compounded and posted quarterly.

[Nuclear and Environmental Whistleblower Digest XVI C 2 e]
BACK PAY AND FRONT PAY; INTEREST; PREJUDGMENT COMPOUNDED QUARTERLY AT RATE DETERMINED UNDER 26 U.S.C. §6621(b)(3) PLUS THREE PERCENTAGE POINTS

In Doyle v. Hydro Nuclear Services , ARB Nos. 99-041, 99-042, and 00-012, ALJ No. 1989-ERA-22 (ARB ay 17, 2000), the ARB wrote: "In light of the remedial nature of the ERA's employee protection provision and the 'make whole' goal of back pay, we hold that the prejudgment interest on back pay ordinarily shall be compound interest. Our reasoning applies equally to back pay awards under analogous employee protection provisions of the other federal statutes under which we issue administratively final decisions [the CAA, CERCLA, FWPCA, SDWA, SWDA, STAA and TSCA]. Absent any unusual circumstance, we will award compound interest on back pay in cases arising under all of these employee protection provisions." Id . @ 18 (footnote omitted). The ARB held that the compounding of interest should be quarterly. The ARB continued:

...As provided by the ALJ and the parties' stipulation, the interest rate is that charged on the underpayment of Federal income taxes, which consists of the Federal short-term rate determined under 26 U.S.C. §6621(b)(3) plus three percentage points. See 26 U.S.C. §6621(a)(2); FRD&O at 2; 1999 Stip. at ¶4.

   The Federal short-term interest rate to be used is the so-called "applicable federal rate" (AFR) for a quarterly period of compounding. See, e.g. , Rev. Rul. 2000-23, Table 1.

The ARB also applied this ruling to prejudgment interest on a front pay award.

[For additional details on how the interest calculation is made, see the decision @ 18-19]

[Nuclear & Environmental Digest XVI C 2 e]
DAMAGES; POST-JUDGMENT INTEREST DOES NOT AUTOMATICALLY ACCRUE

In Pillow v. Bechtel Construction, Inc. , No. 98-4217 (11th Cir. Jan. 28, 2000) (case below ARB No. 97-040, ALJ No. 1987-ERA-35), an ERA whistleblower case, the court rejected plaintiffs' argument that post-award interest accrues as a matter of law on agency awards.

[N/E Digest XVI C 2 e]
PREJUDGMENT INTEREST; COMPOUNDING

In Willy v. The Coastal Corp ., 85-CAA-1 (ALJ May 8, 1997), Complainant contended that pre-judgment interest should be compounded either yearly or quarterly based on OFCCP v. WMATA , 84-OFC-8 (Ass't Sec'y Aug. 23, 1989). The ALJ recognized that WMATA contained language that could be interpreted as approval of yearly compounding, but concluded based on the context of the decision as a whole, as well as subsequent decisions in the matter WMATA, 84-OFC-8 (Ass't Sec'y Nov. 17, 1989) and WMATA, 84-OFC-8 (Ass't Sec'y Nov. 14, 1990), that there should be no compounding of interest.

XVI C 2 e Interest on back pay

The fact that the ERA does not expressly provide for interest on back pay does not preclude it. Items not expressly provided for by the Act are not necessarily precluded.

Blackburn v. Metric Constructors, Inc., 86-ERA-4 (Sec'y Oct. 30, 1991).

XVI C 2 e 26 U.S.C. § 6621

Interest on a back pay award under the ERA is the rate specified in section 6621 of the Internal Revenue Code, 26 U.S.C. § 6621 (1988), rather than the rate specified in 28 U.S.C. § 1961.

Beck v. Daniel Construction Co., 86-ERA-26 (Sec'y Aug. 3, 1993).

XVI C 2 e Interest based on 26 U.S.C. § 6621

Interest on a back pay award should be at the rate provided for in 26 U.S.C. § 6621. According to the Secretary:

Department of Labor regulations implementing Section 3 of the Debt Collection Act of 1982, 31 U.S.C. § 3711(f) (1982), set forth the rate of interest chargeable on debts owed to the Department. Under 29 C.F.R. § 20.58(a) (1988), "[t]he rate of interest prescribed in section 6621 of the Internal Revenue Code shall be sought for backwages recovered in litigation by the Department." While this regulation, by its terms, is not controlling on the question of appropriate prejudgment interest in this case, adopting an approach consistent with the regulation is reasonable. Additional support for this method derives from analogous employment discrimination cases. [citations omitted].

Wells v. Kansas Gas & Electric Co., 85-ERA-22 (Sec'y Mar. 21, 1991).

XVI C 2 e Interest on back pay to date of compliance

Interest on a back pay award shall be paid at the rate specified in 26 U.S.C. § 6621 (interest on underpayment of Federal income tax) until the date of compliance with the Secretary's order. Sprague v. American Nuclear Resources, Inc., 92-ERA-37 (Sec'y Dec. 1, 1994).

XVI C 3 Cross-certification of complainant

In Blake v. Hatfield Electric Co., 87-ERA-4 (Sec'y Jan. 22, 1992), the Secretary found that the record supported the ALJ's recommendation that the respondent be ordered to cross- certify the complainant in additional inspection procedures. The complainant was entitled to be cross-certified, several inspectors were cross certified after the complainant's layoff, and the layoff was found to be in violation of the ERA. Hence, the respondent had the burden of proving that the complainant would not have received this training, and did not carry that burden. Cf. Alexander v. Menlo Park, 787 F.2d 1371, 1375 (9th Cir. 1986), cert. denied, 479 U.S. 1032 (1987).

The Secretary noted, however, that if the respondent on remand could show that the complainant would have been laid off anyway shortly after his improper layoff, the cross-certification point may be moot.

[Nuclear and Environmental Digest XVI C 3]
REMEDIES; SUBSTITUTING CASH VALUE FOR STOCK OPTIONS ORDERED RESTORED

In Hobby v. Georgia Power Co. , 1:01-CV-01407 (N.D.Ga. Feb. 15, 2006) (case below ARB No. 98-166, ALJ No. 1990-ERA-30), following extended proceedings, the Complainant was ordered reinstated and granted other remedies, one of which included restoration of stock options. Following reinstatement, the Respondent concluded that it could not restore the stock options with strike prices at the relevant time periods because of a company policy against issuing discounted options. Thus, it decided to determine an economic value for the stock options and use that value for the restoration. The Complainant sought enforcement of the DOL order in federal district court. The court found that the Defendant had presented evidence to show why its decision to substitute a cash value for a missed stock option might be a reasonable business decision, absent a court order, but had failed "to support a finding that it was prohibited from issuing the discounted options where such restoration had been ordered as a remedy for discrimination." Slip op. at 13. The court recognized that extreme impracticability of performance may have the same effect as impossibility, but found that the Defendant had not established a question of fact as to such impracticability. Even if it was impossible, the Defendant had not presented sufficient evidence to create a question of fact that the method it used to establish the case value of missed options was sufficient to satisfy the requirement of the DOL order. The Defendant argued that the Complainant's proposed valuation, which was based on his holding the options until their expiration, would be artificially appreciated based on a self-serving and preposterous notion. The court, however, wrote that "[t]he injury that plaintiff suffers is the deprivation of his range of elective action." Slip op. at 14-15, quoting Haft v. Daft Group Corp. , 877 F. Supp. 896, 902 (D.Del. 1995). The court granted summary judgment for the Complainant, and specified how the options were to be paid.

[Nuclear & Environmental Digest XVI C 3]
DAMAGES; LOST VACATION TIME; RESTORATION V. CASH VALUE

In Hobby v. Georgia Power Co. , ARB No. 98-166, ALJ No. 1990-ERA-30 (ARB Feb. 9, 2001), the ARB adopted the standard of Palmer v. Western Truck Manpower, Inc ., 1985-STA-16 (Sec'y June 26, 1990), vac'd on other grounds, Western Truck Manpower, Inc. v. United States Dep't of Labor , 943 F.2d 56 (9th Cir. 1991) (table), available at 1991 U.S. App. LEXIS 21675, for determining when a complainant is entitled to reimbursement for lost vacation time. A complainant is entitled to be paid for accrued vacation time he has lost as a result of the employer's discrimination; however, "[w]here it is the practice of the employer to pay an employee for vacation time not taken, it is equitable that a complainant receive both straight wages and vacation pay for the same period. Where, however, an employee must take his vacation or lose it, the addition of vacation pay to a back pay award of straight salary for the same period would compensate the complainant for more than he lost as a result of the employer's illegal discrimination." Hobby , slip op. at 36, quoting Palmer , supra ., slip op. at 4-5.

Finding that Complainant's former employer permitted "carry-over" of unused leave, the ARB found that Complainant was entitled to the cash value of lost vacation until the time he is reinstated, plus interest. In making this ruling, the ARB in effect affirmed the ALJ's rejection of Complainant's request for the restoration of lost vacation time instead of the cash value of such time. The ALJ had found that restoration of lost vacation time was not consistent with the goal of reintegrating Complainant into Respondent's organization.

[Nuclear & Environmental Digest XVI C 3]
ABATEMENT OF VIOLATION; ASSIGNMENT TO DENIED POSITION

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 had concluded that Complainant had been denied a reassignment to a more favorable program management position, despite having more seniority than an otherwise equally qualified employee, and that Complainant's placement on extended administrative leave in violation of the ERA had either directly or indirectly affected his ability to receive the reassignment. As a remedy, the ALJ ordered Respondent to assign Complainant to a similar position retroactive to the date of co-worker's reassignment. Since there was no evidence that the new position involved a higher rate of pay, however, the ALJ did not order back pay.

[N/E Digest XVI C 3]
PAYMENT FOR CERTIFICATION COURSE; NOT PART OF BACK PAY AWARD

In Hoffman v. Bossert , 94-CAA-4 (ARB Jan. 22, 1997), the Board found that Complainant was not entitled to $800 in back pay representing the amount Respondent paid for each worker who attended asbestos certification school; rather, the Board ordered reinstatement and directed Respondent to pay for Complainant to attend the same course.

DAMAGES; PER DIEM PAYMENTS NOT AWARDED WERE COSTS NOT INCURRED
[N/E DIGEST XVI C 3]

Back pay award did not include per diem payments where Complainant did not incur the expenses of living away from home. Thus, those payments were not necessary to make Complainant whole. Doyle v. Hydro Nuclear Services , 89-ERA-22 (ARB Sept. 6, 1996) (Respondent had refused to hire Complainant).

TERMS, CONDITIONS AND PRIVILEGES OF EMPLOYMENT
[N/E Digest XVI C 3]

In Creekmore v. ABB Power Systems Energy Services, Inc., 93-ERA-24 (Dep. Sec'y Feb. 14, 1996), the Deputy Secretary indicated that health, pension and other related benefits are terms, conditions and privileges of employment to which a successful ERA complainant is entitled from the date of a discriminatory layoff until reinstatement or declination. Such compensable damages include medical expenses incurred because of termination of medical benefits, including premiums for family medical coverage.

COMPENSATORY DAMAGES; MEDICAL COSTS AS PART OF BACK PAY AWARD
[N/E Digest XVI C 3]

In Crow v. Noble Roman's, Inc. , 95-CAA-8 (Sec'y Feb. 26, 1996), the ALJ recommended that the Respondent pay as compensatory damages any reasonable medical costs that would have been covered under the Respondent's health insurance coverage. The Secretary observed that the Respondent is required to pay those medical costs as part of its obligation to reinstate the Complainant to his former position, together with its conditions and privileges, such as health insurance coverage. The Secretary noted that should the Complainant decline reinstatement, the Respondent would be required to reimburse the Complainant for medical costs as part of the back pay award.

XVI C 3 Direction that respondent return complainant to permanent position she had been promised

Where the Complainant was working under a temporary promotion and had been promised a permanent promotion, but the promotion was rescinded after she engaged in whistleblowing activities and this action was found to constitute a violation of the ERA, it was within the Secretary's authority to order the Respondent to return the Complainant to the position she had been working under on a permanent basis. The Sixth Circuit held that a promise of permanent employment at a certain level is a type of "terms, conditions, and privileges" that may attach to a position. See 42 U.S.C. § 5851(b)(2)(ii). The Detroit Edison Co. v. Secretary, United States Dept. of Labor, No. 91-3737, slip op. (6th Cir. Apr. 17, 1992) (per curiam) (unpublished) (available at 1992 U.S. App. LEXIS 8280).

XVI C 3 Restoration of lost fringe benefits

The SWDA provides that upon finding a violation, the Secretary shall order the party committing the violation to take affirmative action to abate the violation, including, but not limited to, rehiring or reinstatement of the employee with compensation. 42 U.S.C. § 6971(b). Employees wrongfully discharged under comparable discrimination provisions, e.g., Title VII, may recover an amount equal to wages the employee would have earned but for the illegal discrimination, along with lost fringe benefits such as medical and life insurance, vacation pay, and pension benefits. The remedy is designed to restore victims to the wage and employment positions they would have occupied absent the unlawful discrimination. [citations omitted].

In Williams v. TIW Fabrication & Machining, Inc., 88-SWD-3 (Sec'y June 24, 1992), the Complainant was covered by a group long-term disability insurance policy. The Complainant became permanently disabled between his discharge in ay 1988 and the fall of 1989, when his disability was medically confirmed. Had the Complainant not been unlawfully discharged, he would have been subject to the insurance policy at the point at which he became permanently disabled, and the Secretary ordered the recovery an any benefits the Complainant would have received by operation of the lost disability insurance. See 29 C.F.R. § 24.6(b)(2).

XVI.C.3. Complainant's entitlement to unemployment compensation benefits

In Tritt v. Fluor Constructors, Inc, 88-ERA-29 (ALJ Aug. 29, 1994), the ALJ issued a recommended decision on remand regarding back pay and whether the complainant was entitled to an award of compensatory damages. The Complainant sought unemployment compensation even though he had not applied for such.

The ALJ concluded that unemployment compensation reimbursement is not an element of damages where a complainant fails to exhaust his administrative remedy of applying for benefits. Harris v. Citibank , 1988 U.S. Dist. LEXIS 3354. An individual is not entitled to judicial relief for a supposed or threatened injury until the prescribed administrative remedy has been exhausted. Cody v. Scott , 565 F.Supp. at 1031 (S.D.N.Y. 1983) quoting Myers v. Bethlehem Shipbuilding Corp. , 303 U.S. 41 (1938). A mere possibility that an individual's claim may be rejected is not grounds for allowing him to bypass administrative requirements. Cody , supra .