DIVISION IX -- DAMAGES AND REMEDIES
SUBDIVISION D -- OTHER RELIEF
[Last updated June 3, 2014]
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IX. Damages and remedies
- D. Other relief
In Shields v. James E. Owen Trucking, Inc. , ARB No. 08-021, ALJ No. 2007-STA-22 (ARB Nov. 30, 2009), the ARB found that the ALJ did not err when he ordered the Respondent to expunge all negative or derogatory information from the Complainant's personnel records relating to his protected activity or its role in the Complainant's termination; to contact every consumer reporting agency to which it may have furnished a report about the Complainant; to request that the reports be amended; and to conspicuously post copies of the ALJ's recommended decision and of the ARB's final decision and order for 90 days.
IX D 1 Cleansing of work record
In Self v. Carolina Freight Carriers Corp., 91-STA-25 (Sec'y Aug. 6, 1992), the Secretary ordered the respondent, inter alia, to expunge from its personnel files a warning letter and notice of suspension pertaining to the complainant's work refusal.
[STAA Digest IX D 1]
ORDER TO EXPUNGE; PERSONNEL RECORDS
In Michaud v. BSP Transport, Inc. , 95-STA-29 (ARB Oct. 9, 1997), Respondent objected to the ALJ's order to expunge from Complainant's personnel records all derogatory or negative information contained therein relating to Complainant's protected activity and that protected activity's role in Complainant's termination. The objection was that the order was vague and Complainant had not identified any specific negative documents that should be removed.
The ARB affirmed the ALJ's order, finding it to be sufficiently clear. The ARB stated that it would not place the burden on Complainant to identify specifically the documents.
IX.D.1. STAA, absenteeism policies
Complainant does not forfeit his STAA protection as a condition
of employment under an employer's rules. Where the respondent's
absent
eeism policy advances the complainant on the disciplinary tract
for refusing to work while impaired by the use of medication,
then the complainant's refusal constitutes protected activity and
the respondent must restore the complainant's work history to
eliminate the effects of the adverse employment action.
Curless v. Thomas Sysco Food Serv.,
91-STA-12
(Sec'y Sept. 3, 1991).
IX.D.1. Cleansing of work record
In Judd v. Helena Truck Lines, Inc., 91-STA-48 (Sec'y Apr. 7, 1993), the Secretary dismissed the complaint based on the Complainant's failure to establish a prima facie case, but noted that he disagreed with the Respondent's contention that the complaint was moot because the Complainant had too many moving violations in his driving record to allow reinstatement. The Secretary noted that, if the Complainant had been successful in proving his case, he would have been entitled to expunction of the voluntary resignation from his record.
IX.D.1. Purging of employment records
In Shamel v. Mackey, 85-STA-3 (Sec'y Aug. 1, 1985), the Secretary ordered Respondent, in addition to paying compensatory damages and costs, to purge Complainant's employment records of any all references indicating that Complainant was discharged for cause.
IX. D. 1.
Cleansing of work record
In
Chapman v. T.O. Haas Tire Co.,
94-STA-2 (Sec'y
Aug. 3, 1994), the Secretary agreed with the ALJ's recommendation
to order Respondent to modify the Complainant's final performance
evaluation from grade F to grade C, with compensation
commensurate therewith, as a measure to achieve the make-whole
remedial purpose of the STAA.
IX. D. 1. Cleansing of work record
In Chapman v. T.O. Haas Tire Co., 94-STA-2 (Sec'y Aug. 3, 1994), the Secretary agreed with the ALJ's recommendation to order Respondent to modify the Complainant's final performance evaluation from grade F to grade C, with compensation commensurate therewith, as a measure to achieve the make-whole remedial purpose of the STAA.
IX.D.2. Respondent ordered to post notice of its obligation under STAA
In Park v. McLean Transportation Services, Inc., 91-STA-47 (ALJ Mar. 26, 1992), aff'd, 91-STA-47 (Sec'y June 15, 1992), the respondent was ordered to post a notice to all its employees acknowledging its obligations under the STAA. The Secretary affirmed the ALJ's decision without direct comment on this order.
[STAA Digest IX D 2]
AFFIRMATIVE RELIEF; POSTING OF NOTICE
In Scott v. Roadway Express, Inc. , ARB No. 99-013, ALJ No. 1998-STA-8 (ARB July 28, 1999), the ARB ordered Respondent to post a notice at the facility where Complainant worked, which included the following language:
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Roadway's Akron facility has issued letters of warning to drivers who take one or more sick day(s) because their ability or alertness to drive is so impaired, or so likely to become impaired through fatigue, illness, or any other cause, as to make it unsafe for the drivers to begin or continue to operate the motor vehicle, but who have no personal vacation days, sick leave, or annual leave days available and do not qualify for family medical leave. This policy violated the Surface Transportation Assistance Act in this matter.
- The Surface Transportation Assistance Act does not preclude Roadway Express, Inc. from establishing mechanisms for assuring that a claimed illness is legitimate or serious enough to warrant a protected refusal to drive.
Id . at Appendix A (bold in original).
[STAA Digest IX D 2]
POSTING OF NOTICE OF DECISION
In Michaud v. BSP Transport, Inc. , 95-STA-29 (ARB Oct. 9, 1997), Respondent objected to the ALJ's order to post written notice advising that the disciplinary action taken against Complainant had been expunged and that Complainant prevailed on this complaint. The objection was based on the passage of time since Complainant's 1993 discharge. The ARB affirmed the ALJ's order, finding that it was a standard remedy in discrimination cases that notifies a respondent's employees of the outcome of a case against their employer.
IX.D.3. Retroactive health benefits
In Dutile v. Tighe Trucking, Inc., 93-STA-31 (ALJ July 1, 1994), the ALJ concluded that it is now well-settled that the Complainant, in addition to his award of back pay and interest thereon, is also entitled to restoration of the pension contributions and the health and welfare benefits of which he has been deprived as a result of the discriminatory and illegal actions of the Respondent. In this regard, see Hufstetler v. Roadway Express, Inc., 85-STA-8 (Sec'y, Aug. 21, 1986) (dealing with the restoration and payment of all pension contributions and lost medical benefits).
In a motion for reconsideration, however, Dutile v. Tighe Trucking, Inc., 93-STA-31 (ALJ Aug. 6, 1994), Respondent presented evidence that Complainant was not entitled to those benefits as he rejected the Employer's medical insurance plan and as his rights had not vested in the Employer's retirement and pension plan. The ALJ concluded that the Complainant was entitled only to be restored to the status quo ante he enjoyed on his last days of employment and on that day he did not participate in the medical insurance program offered by the Employer and his rights in the retirement and pension plan had not vested.
[STAA Digest IX D 3]
COMPENSATORY DAMAGES; MEDICAL BENEFITS; RESPONDENT IS NOT
REQUIRED TO PAY BOTH HEALTH INSURANCE PREMIUMS AND FAMILY MEDICAL
EXPENSES EXCEPT COMPLAINANT'S OUT-OF-POCKET HEALTH CARE COSTS
DIRECTLY ATTRIBUTABLE TO RESPONDENT'S WRONGFUL CONDUCT
In Michaud v. BSP Transport, Inc. , 95-STA-29 (ARB Oct. 9, 1997), the ARB affirmed the ALJ's order that Respondent pay the value of health insurance premiums, but reversed his order that Respondent also pay for any health care cost incurred by Complainant or his family that would have been covered under Respondent's health insurance program, the ARB finding that Complainant would otherwise receive a double recovery. The ARB, however, affirmed that portion of the ALJ's order that Respondent pay health care costs associated with diagnosing and treating Complainant's depression (regardless of whether that care and treatment would have been covered by Respondent's health insurance program) personally incurred by Complainant because the ARB had found that Respondent's wrongful conduct caused the depression.
IX D 3 Pension benefits
The Respondent argued that the Complainant should not be entitled to pension benefits after the date that he began working for another company and became a participant in that pension plan. Because that plan does not vest for ten years, if Complainant were reinstated with the Respondent, his interest in the new employer's pension fund would end. The ALJ also held, however, that if the Complainant refuses reinstatement, the monies that would have been contributed on behalf of the Complainant had he not been unlawfully terminated shall be paid to the Complainant directly. Stone v. Nu-Car Carriers, Inc. , 86-STA-16 (ALJ Dec. 28, 1988).
IX D 3 Relationship to reinstatement
The STAA expressly mandates that a complainant who established a meritorious case is entitled to immediate reinstatement to his or her "former position together with the compensation (including back pay), terms, conditions, and privileges of the complainant's employment * * *." 49 U.S.C. app. § 2305(c)(2)(B). Accordingly, such a complainant is entitled to retroactive seniority and retroactive health benefits status to the extent that it would affect current or future entitlement to benefits.
Hamilton v. Sharp Air Freight Service, Inc., 91- STA-49 (Sec'y July 24, 1992).
IX D 3 Health and welfare benefits
Where Complainant did not show that he purchased private insurance as a substitute for health and welfare benefits that would have been paid by Respondent to a Union fund during the period of discharge, the Secretary denied Complainant's request to be paid directly the amounts Respondent would have spent.
In addition, where Complainant did not show that he had any immediate loss as a result of Respondent's not paying health and welfare contributions, the Secretary declined to order Respondent to pay for benefits for the period of the discharge except to the extent that they affect current or future entitlement to benefits. Hufstetler v. Roadway Express, Inc., 85- STA-8 (Sec'y Aug. 21, 1986), overruled on other grounds, Roadway Express, Inc. v. Brock , 830 F.2d 179 (11th Cir. 1987).
IX D 3 Retroactive seniority & health benefits
Where a complainant has been discharged in violation of the STAA, the complainant is entitled to retroactive seniority and retroactive health benefits status to the extent that it would affect current or future entitlement to benefits. Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 399-400 (1982); Hufstetler v. Roadway Express, Inc., 85-STA-8 (Sec'y Aug. 21, 1986), slip op. at 49, aff'd sub nom., Roadway Express, Inc., v. Brock, 830 F.2d 179 (11th Cir. 1987).
Hamilton v. Sharp Air Freight Service, Inc., 91- STA-49 (Sec'y July 24, 1992).
[STAA Digest IX D 4]
PUNITIVE DAMAGES UNDER THE STAA MAY BE BASED ON RESPONDENT'S CALLOUS DISREGARD FOR THE COMPLAINANT'S RIGHTS AND WELFARE
In Anderson v. Timex Logistics , ARB No. 13-016, ALJ No. 2012-STA-11 (ARB Apr. 30, 2014), the ARB found that the record supported the ALJ's award of punitive damages in the amount of $12,500.� The ALJ found that the Respondent had set the Complainant up for failure by dispatching him for a delivery he could not legally complete under the FMCS hours of service regulation, that after firing him the Respondents did not help him get home showing callous disregard for the Complainant's welfare, and the Respondent withheld payment of $1,879.50 without good reason.� The ARB also noted that the Complainant had testified extensively about the distress he suffered just before and after his termination.� The ARB stated that punitive damages are warranted both where there has been reckless or callous disregard for the plaintiff's rights, as well as intentional violations of federal law.
[STAA Digest IX D 4]
PUNITIVE DAMAGES; ALJ MUST DETERMINE THE NECESSITY FOR AND AMOUNT OF SUCH DAMAGES UNDER THE FACTS OF THE CASE
In Ferguson v. New Prime, Inc. , ARB No. 10-075, ALJ No. 2009-STA-47 (ARB Aug. 31, 2011), the ALJ awarded $75,000 in punitive damages based on a finding that the Respondent's fleet manager had intentionally violated a federal safety statute when he pressured the Complainant to drive through the Donner Pass in hazardous conditions. The ALJ found that the fleet manager had demonstrated a total disregard not only for the Complainant and her co-driver's safety but for the safety of other drivers on the road, and that this behavior was both reprehensible and inimical to the purpose of the Act. The ARB remanded for additional findings. The ARB wrote:
The United States Supreme Court has held that punitive damages may be awarded where there has been "reckless or callous disregard for the plaintiff's rights, as well as intentional violations of federal law . . . ." Smith v. Wade , 461 U.S. 30, 51 (1983). The Court explained the purpose of punitive damages is "to punish [the defendant] for his outrageous conduct and to deter him and others like him from similar conduct in the future." Restatement (Second) of Torts § 908(1) (1979). The focus is on the character of the tortfeasor's conduct � i.e., whether it is of the sort that calls for deterrence and punishment over and above that provided by compensatory awards. Id. at 54.
... [T]he ALJ did not consider whether Thomas's behavior reflected a corporate policy of STAA violations or whether punitive damages are necessary in this case to deter further violations. See generally White v. The Osage Tribal Council , ARB No. 96-137, ALJ No. 1995-SDW-001 (ARB Aug. 8, 1997); Johnson v. Old Dominion Sec. , Nos. 1986-CAA-003, -004, -005, slip op. at 29 (Sec'y May 29, 1991). Moreover, the ALJ accepted the Complainant's request for damages in the amount of $75,000 without discussing the evidentiary basis for this finding. Thus, we vacate the ALJ's punitive damages award and remand the case for further findings on the necessity and amount of such damages under the facts of this case. In his analysis, the ALJ should include consideration of the size of the award that would adequately deter New Prime from future violations and the punitive impact of the damages on the company.
USDOL/OALJ Reporter at 8-9.
[STAA Digest IX D 4]
PUNITIVE DAMAGES; PRE-AMENDMENT COMPLAINT
In Smith v. Lake City Enterprises, Inc. , ARB Nos. 08-091 and 09-033, ALJ No. 2006-STA-32 (ARB Sept. 24, 2010), the ALJ denied an award of punitive damages because the complaint had been filed before the effective date of the 2007 amendments to the STAA that permit such damages. On appeal, the ARB agreed with the 8th Circuit's decision in Elbert v. True Value Co. , 550 F.3d 690, 693 (8th Cir. 2008), that the STAA amendments that provide, among other things, for the award of punitive damages, do not apply retroactively to pending claims.
IX D 4
Punitive damages not authorized [pre-Amendment of the STAA]
Punitive damages are not authorized under the STAA. 49 U.S.C. § 31105(b)(3)(A) and (B). Nolan v. AC Express, 92-STA-37 (Sec'y Jan. 17, 1995).
Where in a blacklisting case based on the Respondent's provision of information about a prior STAA complaint, the Complainant did not seek back pay or other damages, the Secretary only ordered the offending Respondent to cease and desist from providing any information about Complainant's prior complaint under the STAA in response to any employment reference inquiry. Earwood v. Dart Container Corp., 93-STA-16 (Sec'y Dec. 7, 1994).