USDOL/OALJ Law Library: Nuclear and Environmental Whistleblower Digest, DIVISION XVI D -- COMPENSATORY DAMAGES

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).

See Polgar 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

XVI D 1 Compensatory damages, generally

Compensatory damage awards are authorized under the ERA.

DeFord v. Secretary of Labor, 700 F.2d at 288; English v. Whitfield, 858 F.2d 957, 964 (4th Cir. 1988); see also 42 U.S.C. § 5851(b)(2)(B)(ii).

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."

Carey v. Piphus, 435 U.S. at 264 n.20.

The testimony of medical or psychiatric experts is not necessary, however, although it can strengthen a complainant's case.

Busche v. Burkee, 649 F.2d 509, 519 n.12 (7th Cir. 1981), cert. denied, Burkee v. Busche, 454 U.S. 897 (1981).

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.

XVI. D. 2. When the issue 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.

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

XVI D 2 a 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 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.

16 d 2 b i ALJ finds against complainant

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).

16 d 2 b ii Damages for future medical expenses

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:

Plaintiff, of course, has the burden in the original proceeding of proving each element of damage including future medical expenses and future pain and suffering. [citations omitted] In McDonald, the court allowed an amendment of the administrative claim to seek additional damages because the case involved injuries resulting from injection of Swine Flu vaccine . . . . The court put the case in the class of cases involving complex and poorly understood conditions, calling it a "very subtle and complex injury, an injury which is to this day a mystery to the medical field." [ McDonald , 555 F. Supp. 935, quoting from Smorgiassi v. United States , (D.Pa. July 1, 1981, unreported opinion)].

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.

[Nuclear and Environmental Whistleblower Digest XVI D 3 a]
COMPENSATORY DAMAGES FOR MENTAL OR EMOTIONAL DISTRESS; UNSUPPORTED TESTIMONY OF COMPLAINANT IS INSUFFICIENT TO SUPPORT AWARD

In Pierce v. United States Enrichment Corp. , ARB Nos. 06-055, -058, -119, ALJ No. 2004-ERA-1 (ARB Aug. 29, 2008), the ARB wrote:

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.

To the same effect, Dixon v. United States Dept. of Interior, Bureau of Land Management , ARB Nos. 06-147, -160, ALJ No. 2005-SDW-8 (ARB Aug. 28, 2008).

XVI D 3 a 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). 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 ay 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 arine 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

XVI D 3 b Loss of professional reputation

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

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.

[Nuclear & Environmental Digest XVI D 3 c]
DAMAGES; COMPLAINANT MAY RECOVER VALUE OF HEALTH INSURANCE FRINGE BENEFITS OR COST OF SUBSTITUTE COVERAGE, BUT NOT BOTH

A complainant may recover the value of health insurance fringe benefits paid by his employer or the cost of purchasing substitute coverage, but not both. Thus, in Tipton v. Indiana Michigan Power Co. , ARB No. 04-147, ALJ No. 2002-ERA-30 (ARB Sept. 29, 2006), PDF | HTM the ALJ erred in awarding $10,774 to reimburse the Complainant for his costs in purchasing replacement of his health and dental insurance, and also $44,074 to cover the net lost value of fringe benefits. The ARB found that the fringe benefit award presumably included premiums the Respondent would have paid for health and dental insurance. The ARB held that the ALJ's ruling resulted in a double recovery of health and dental insurance benefits, and therefore reversed the award of $10,774 for replacement insurance.

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.

Other

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.

Berkman v. U.S. Coast Guard Academy , 1997-CAA-2 (ALJ Jan. 2, 1998), slip op. at 50.

[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.

XVI D 4 a Emotional distress

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 AY 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.
Smith v. Littenberg , Case No. 92-ERA-52, Sec'y Dec., Sept. 6, 1995, slip op. at 7. The Secretary affirmed the ALJ's recommendation of award of $10,000 for mental and emotional stress caused by discriminatory discharge where Smith supported his claim with evidence from a psychiatrist that he was "depressed, obsessing, ruminating and ha[d] post-traumatic problems."
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]

COMPENSATORY DAMAGES; REQUIRED SHOWING
[N/E Digest XVI D 3 a and XVI D 4 a]

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

XVI. D. 4. a. Comparative awards

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.

XVI D 4 b Compensatory damages; interest

Where Complainant cited no authority for assessment of interest on compensatory damages, his request for an award of such interest was denied.

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

COMPENSATORY DAMAGES; INTEREST NOT AVAILABLE
[N/E Digest XVI D 4 b]

Interest is not awardable on compensatory damages. Smith v. Littenberg , 92-ERA-52 (Sec'y Sept. 6, 1995).

COMPENSATORY DAMAGES; INTEREST DOES NOT ACCRUE
[N/E Digest XVI D 4 b]

Interest does not accrue on a compensatory damages award. Creekmore v. ABB Power Systems Energy Services, Inc., 93-ERA-24 (Dep. Sec'y Feb. 14, 1996).

XVI D 4 c Blacklisting

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.

[Nuclear and Environmental Whistleblower Digest XVI D 4 d]
COMPENSATORY DAMAGES; ENHANCEMENT FOR TAX CONSEQUENCES

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 urphy 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).

[Nuclear and Environmental Whistleblower Digest XVI D 4 e]
COMPENSATORY DAMAGES; ADDITION FOR PERIOD DURING WHICH CASE WAS REMANDED; SUCH ADDITIONS ARE NOT BASED IN PUNISHMENT

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.