ML20082G211

Decision Finding Unlawful Discrimination Supported by Evidence & Awarding Employee Compensatory Damages

ML20082G211
Person / Time
Site:	Sequoyah
Issue date:	02/10/1983
From:	U.S. COURT OF APPEALS, 6TH CIRCUIT
To:
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ML20079F005	List: ML20082G211 ML20082G221
References
FOIA-83-426 NUDOCS 8311300114
Download: ML20082G211 (11)

Text

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ES DeFORD v. SECRETARY OF LABOR 281 Cte as 70o F.2d 2s1 (lM3) m stated in Nonhcross' q tion for altering a final desegregation de-its discretion in awarding the applicants the t facter which renders a cree. In setting the fees for that aspect of increase of 33.33% in order to arrive at a 9 unusually low is the fact de case (the 1978 Fee Award) this Court total amount nrpresenting, as it does, rea-s contingent upon success.

nade a 10% upward adjustment in the reg-sonable compensation to the prevailing par-he risk was greatest in ular bilh,ng rate because "there was a real ties' attorneys in this case.

sveloping areas of law or-dement of contingency as to whether the e facts are strongly disput-attorneys would be compensated for their.

services at all." 611 F.2d at 64L The 638. Both elements were

.se, th;reby supporting "a MatiYely low 10% figure was considered to For th,e reasons set forth above,.the dis-h adjustmtnt to compen-be reasonable because "[g]iven that the bur. trict court's award of attorneys' fees is AF-den was on the Board, we [did] not believe FIR 5 FED in all respects. Each party shall

{ Id.

6at there was a very large chance that the bear its own costs on this appeal.

ndant is correct 'that the plaintiffs would wholly fail to prevail." Id.

!st discrimination in hiring Plaintiffs-in the present case, because they he was not disputed at the bore the burden of proof, had a greater risk mumm) a fi:ed in 1974, it cannot be of n t prevailing and the consequent risk of

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employment cisenmina.

en-payment than did the Northeross plam, -

p, loping area of the law at p

tiffs. Accordingly, we find that the district lpphcants correctly pcint court acted properly in awarding a contin-Purse of the case there gency adjustment in this case greater than dat awarded in Northeross.

nark decisions by.he Su-wilijam Dan DeFORD, Petitioner, Furthermore, as noted earh.er m this jrning issues rele] ant to

[nent testmg, proo: of m.

epinion, che district court in the present

ase did not make any specific adjustments SECRETARY OF LABOR, Respondent, gt:on, the use of statisti-for inflation, finding that the applicants and geternunation of a rea-had been fairly and adequately compensat.

and the pennissibility of ed without the addition of an inflation fac-Tennessee Valley Authority, Intervenor.

dies.3 Furthermere, we

or or the use of a present value-based ct court s extensive find-calculation." The district court undoubted-TENNESSEE VALLEY AUTHORITY' September 13,1979, the ly took into consideration in this regard the sal on the issuer (five 33.33% contingency factor awarded by the

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gerous opposition by the court and may have properly concluded that. SECRETARY OF LABOR, Respondent.

.ve of a case in whih the dis substantial increase in the fees award-dincted.

ed serve

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9, 282 700 FEDERAL REPORTER,2d SERIES

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m-expenses, insof'r as they.were found to be discretion rests in him; therefore, even if a 3,f '.

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%i. g' appropriate; and (3) relief fashioned wholly complainant does not ultimately recei.;, f Judges C'

under Energy Reorganization Act, without compensatory damages or other particula Jac,ge

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resort to the Federal Employees' Compensa-relief which is sought, it would not be pnp.,

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tion Act, was appropriate.

er for the Secretary to deny fees and ex. {

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Remanded.

Penses unless he determines first that they

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were not reasonably incurred. Energy Re.

Petit 02 organization Act of 19M, $$ 2 et seq.,210. '

the b

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L Labor Relations *=26.5 as amended, 42 U.S.C.A.

6 5801 et seg, ment c i

Employee is not required to show that 5851.

Energ.'.

}.l he disclosed uniaue evidence to the %Ar ~

amend;

6. Labor Relations =26.a.

6-.i-Regulatory Commission, or evidence that procul employer attempted to hide, in order to Where there was no sign in record ths:

75;1 3 emP yee'S Previous job had ceased to e.h I

make out s. case of discrimination under the nm Energy Reorganization Act. Energy Reor-and in any event it would certainly prove

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ganization Act of 19M, s5 2 et set, 210, that Secretary of Labor or perhaps employ.

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• • ' ** 9?"S*d t I

210(a), as amended. 42 U.S.C.A. 55 5301 et min-.--

seq., 5851, 5851(a).

decision whether an alternative job must t*

or pa-found, employee who was demoted after he C~'N

2. Labor Relations *=26.5 cooperated with Nuclear Regulatory Coc.

Employee was not required to prove mission investigations should be rein:,ts:ed that he was treated differently fmm other. to his former position. Energy Reorganiza-E h,',

similarly situated participants in Nuclear tion Act of 1934, ss 210, 210(bX2XB), ss [

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Regulatory Commission investigation in or-

amended, 42 U.S.C.A.

5 s 5331. !

1p71' der to make out a case of disedmination 5851(bX2)(B).

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7. Labor Relations =26.5 under the Energy Reorganization Act. En-e ergy Recrganization Act of 1934, 9 2 et Relief fashioned wholly under the E:. '

DeFor seq., 210, 210(a), as amended, 42 U.S.C.A.

ergy Reorganization Act of 1974, withou:

gineer

.{

5801 et seq.,5851,5851(a).

to Fedal E@ees' Compensatic:.

the Qt.

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3. Labor Relations =26.5 Act, was appropriate in action in which

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under the Energy Reorganization Act, sub. against because he assis In action involving discrimination claim ' employee claimed that he was discriminated that G

specir, l

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stantial evidence supported findings of Sec-in Nuclear Regulatory Corrmission inves:5 Sequo; l

retary of Labor that employee was de noted gation at employer's facility. Energy Reer,

built r F

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' tion against him because he participated in 210(bX2XB), ' as amended, 42 U.S.C.A,

ade and change of jobs represented discrimina-ganization Act of 1934, $$ 2 et seq., 219.

Dur

f. ;. ' ' '

Nuclear Regulatory Commission investiga-56 5801 et seq.,5851,5851(bX2XB); 5 U.S.

yo;g p~Al.c.y tion. Energy Reorganization Act of 1934, C.A.{ 5596(c), 8151.

svest g4g s 2 et seq., 210, 210(a), as amended, 42 le=3 7 g.

US.C.A. (( 5801 et seq., 5851, 5851(a). -

Thomas M. Hale, and James A. Ridley, staff Wild

4. Labor Relations==26.5 III, argued, Kramer, Johnson, Rayson.

ter.h

%-[Q Medical. expenses and other damages McVeigh & Leake, Knoxville, Tenn., for TVA gtW,-j are allowable under the Energy Reorgani " petitioner.

h tnes ;

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zation Act of 1974. Energy Reorganization

~ Herbert S. Sanger, Jr. and James Fox. I H

3 fiik Act of 1934,5 210, as amended,42 U.S.C.A.

Gen. Counsel, Justin M. Schwann, Sr., Asst. r nudir E

Gen. Counsel, Robert E. Washburn, and F. {

Mg' 5851.

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5. Labor Relations *=26.5 Claire Garland, T.V.A., Knoxville, Tenn-r T."*, -

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It,is for' the Secretary of I. abor in fort.V.A.

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-4 action.under the Energy Reorganization Barry S. Sandals and Kathryn A. Ober!y.

r? '-Q Act of 1974 to determine whether expenses argued, Dept. of Justice, Washington, D.C P-

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were reasonably incurred, but otherwise no for respondents.

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c+:t DeFORD v. SECRETARY OF LABOR cae u roo r.uzsi osan 283 7M fy*

Before ENGEL and 3fERRITT, Circuit

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was among the quality assurance staff i

Judges, and 310RTON, Chief District rmbers who were interviewed as part of e pt.rticular Judge *. -

this mternal audit.

y' +_ q not be prop.

i ees cnd ex.

310RTON, Chief Judge.

On August 11,1980, DeFord was notified st that they This appeal concerns three consolidated that a problem m, his section had been re-4 3..]

7 vealed by the TVA audit. He was told that

'M Energy Re-petiti ns f r review f Orders rendered by ct seq., 210 the Secretary of the United States Depart-he was being transferred back to the Elec-h1 et seq.'

ment of Labor (Secretary) pursuant to the trical Engineering Branch. Upon reporting Energy Reorgamzation Act of 1974, as to that division DeFord a!!egedly found amended,42 U.S.C. 5 5851, and regulations that he was not welcome, that he was no promulgated thereunder. Petitioners are longer a supervisor, and that his job was by record that GIISt' William Dan DeFord (DeFord) and the Ten-no means secure.

tam y prove nessee Valley Authority (TV A)., The Secre-On September 10' 1980, DeFoni filed a a emp tary, in sum, awarded relief to.DeFord claim with the Department of Labor, alleg-

', upon findmg that TVA had illegally disen-ing that his transfer was the result of delib- -

ju j mmated agamst DeFord because he assisted erate discrimination by TVA against him or participated m a Nuclear Regulator 7 due to his participation in the NRC inspec-mission (NRC) m, vestigr. tion at a TV^

tion pmess. He stopped woding on Sep e reinstated 17-tember 11,19M, and was hospitalized ten days later for observation. DeFord has tes-Parganiza-

[-

tified that upon suffering the embarrass-b' 2)(B) as X

5S51' DeFord was initially employed by TVA in ment and humiliation that accompanied his 1971, and worked in the Electrical Engi-transfer, he developed chest pains, encoun-

! neering Branch of the Office of Engineer-tered difficulty in sleeping, and began suf.

fering from severe depression. A lengthy ing Design and Const-uction. During 1972 der the En-

}?4. without

-l DeFord was assigned to TVA's Quality En-and complicated administrative process, set gineering Branch and became a manager in in motion by the filing of the aforemen-

mpensation the Quality Assurance Engineering Section. tioned discriinination claim, has culminated

!n in which His responsibilities included ascertaining in the instant proceeding.

criminated that i"'-ious construction standards and x.rticipated IL speifications were complied with at TVA's pien investb Sequoyah Nuclear Plant. which was being After an ex pure investigation of De-fergy Reor-built near Chattanooga, Tennessee.

Ford s charze was conducted, in accordance During July 1950, officials from the NRC with 42 U. SIC. % SS51(b) and applicable reg-it 54 10.

2 U.S.C.A.

j ulations, the Administrator for the Labor made a routine inspection of the Sequoyah Department's Wage and Hour Division noti-RB); 5 UA l project.

DeFord participated in the NRC fied TVA by letter that "the weight of I

investigation and discussed certain prot.-

evidence to date" supported DeFord's claim I

k.ms and concerns of the quality assurance of discrimination. Further, the letter stat-a A. Ridley, staff with NRC personnel. Two weeks af. ed that relief should be accorded, as fo!-

4 a, Rayson, ter the NRC investigation was conducted, lows:

)

Tinn., for TVA officials met with NRC representa-1.

Sir. William Dan DeFord is to be thes in Atlanta, Georgia. At this meeting,

/g yox, NRC officials apprised TVA of the NRC's reinstated to either the 31-5 Quality S

findings and rather strcngly emphasized in Assurance Engineering Section super-hrn,r., Asst. particular their concern with respect to August 11, 1980, or Sir. DeFord is to and E.

visory position held by him prior to 1

a

.a 11 Tenn quality assurance on TVA construction sites. Along the way, TVA began its own be assigned to a comparable 5f-5 su-

"j pervisory position which is acceptable

, A. Oberl).,

inestigation of the NRC findings. DeFord to him.

' gton, D.C.,

'The Honorable I C!ure Morton, Cluef Distnet

r,. i Judge. Uruted States District Court for the Mid-die Distnci of Tennessee. sitting by designa-4 -*

tic.n.

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284 700 FEDERAL REPORTER,2d SERIES j

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2. Mr. DeFord is to be given written because of activities protectsd by that cected a deg the secrew assurances that his conditions and Section.

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privileges of employment will not be I do not agree with the Administrative curred in pj E

adversely affected as a result of his Law Judge's conclusion that medical ex. ;

for pain, su.

involvement in the U.S. Department penses and damages to reputation result. -

pry to rep QiE of Labor's action under the Employee ing from discrimination prohibited by the ;

allegedly s m

Protection Provisions of the Energy Act are recoverable by a claimant under !

theSecre

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Reorgamzation Act (ERA) Public 42 U.S.C 585L I find that the Adminis. I cot recovera f

expenses whz Q 4-Law

• 95-601, Section 21, 42 U.S.C.

trative Law Judge erred in holding that daim.

585L damages for these items may be recov. ;

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- 3.' Mr. DeFord is to be placed on admin.

ered under that provision. Such items do DeFord sc Secretary am "4

istrative leave (leave with full pay) not come within the intended scope of the which will cover the period from Sep.

remedy provided thereby. See the legis.

cpon reinstat tember 12, 1980, until such time that lative history of 42 U.S.C. 5S51,1978 U.S.

to a cog competent medical authorities deter.

Code Cong. and Adm. News, p. 7303.

reinstatemen.

mine that he is able to return to Accordingly, the respondent, the Te:.

de same pos work.

nessee V slley Authority, is hereby v.

osition whic separate moti 4.

Mr. DeFord is to be reimbursed for dered:

all medical and/or legal expenscs in-(1) to reinstate William Dan DeFord to ing enforcem, curred by him during the period from the supervisory position held by hin pending dzsps e

mdons were August 11, 1980, to date.

immediately prior to August 11,1950.

y Both TVA (

A Both DeFord ud TVA appealed from this at the same grade and pay, and under i

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decision to the Labor Department's Office the same terms, conditions, and privi. I

!! 3228) hav N

of Administrative Law Judges.

leges of employment, or to assign hin f Secretary's de seeks review f,

After a full, formal hearing in Knoxviile, to a comparable position with compa. j rable responsibilities at the same tron that ai Tennessee, the administrative law judge (ALJ) essentially concurred with the deci-grade and pay; should be awc

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sion referred to above. In addition, the (2) to place him on administrative leave -

that which he

'ALJ found that DeFord was entitled to with full pay, rather than sick leave. t order filed on I

d:s Court, compensatory damages in the amount of from September 12,19SO, until such

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$50,000. Although the AU's written deci.

dat'e as he is able to return to was:

stayed enforce n n. The thre sion was phrased in mandatory terms, it (3) lo cehse discrimination against him i:

was forwarded in due course to the Secre-any. manner with respect to his ccz.

and ral argr r

l 4, 22.

[

tary as a " recommended decision" along

.pensation, terms, conditions, or pd.+,

p with the hearing record.

,.leges of employment because of so ',

e Upon review of the AU's findings of tions by him to carry out the purpoa '

b fact, conclusions of law, and proposed order, of the' Energy Reorganization Act cf Several all 1974, as amended, or because of his ! against the 1:

the Secretary issued a ruling which stated, fcundations of in pertinent part, as follows:

' participation in this proceeding; D'

an mitial ma:

I5" S.

On the basis of the entire record, it is (4)',td pay him the aggregate amount cf 8

!!' costs and expenses (including ::,. rden of pro.

7' rney fees) reasonably incurred Wl my conclusion that the findings and con.

a M 4.:

clusions in the Judge's recommended de.

to Q.5

• cision of January 7,1981, with respect to

• J'him in connection with this proced * $t It i8

• ell r-3;M F whether DeFord was discriminated ing, as shall be determined by me c:

challeng t

application together with supporti:t :,

Secretaryi

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ported by the evidence in the record and 1 data, pursuant to 42 U.S.C. 53513:3 [ [cc against in violation of the Act are sup-t substantial Ej/ !,@

29 CFR 31.6(b)(3).

Pursuant to this decision, the Secretary b g

. tid" are proper, and I adopt them as my own.

P'2' i @

Accordingly, I find that the respondent,.

2n subsequent order awarded certain atte l ad Pon revie 4

the Tennessee Valley Authority, violated Ei,_

., a Section 210 of the Act (42 U.S.C. 5851) by neys' fees and expenses to DeFord in ti',

,3 fthand et

'a discriminating 'against the complainant total amount of $9,392.00. This figure n-f.

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DeFORD v. SECRETARY OF LABOR.

285 5-m !

cm.as tee r.ussi osaan

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flected a deduction of fees and costs which become academic exercises of little or.no

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n. : 7 the Secretary viewed as having,been in-value.

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.~r i curred in pursuit of "a claim for damages for pain, suffering and men 61 anguish, in.

A.

d1 j i. i jury to reputation, and medical expenses Even if they are considered in isolation,

"~ i alligedly suffered by DeFord." ~Because TVA's contentions regarding allocation of

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the Secretary held that such damages'irere the burden of proof do not withstand scruti ~

not recoverable, he also disallowed fees.and ny. No violence was done to TVA's rights

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expenses which he deemed related to such a with respect' 'to the burden of production, claim.

for DeFord took on that burden just as DtFord sought by motion to have the TVA now argueg that he should. As to the Secretary amend his decision as it touched burden of persuasion, TVA. openly ques-upon rainstatement to the same position "or.tioned whether DeFord had produced evi.

to a comparable position," such-.that dence supporting his claim ~before it put on I

reinstatement would instead be ordered to any proof and also after it brought forth F tha rame position "or to a comparable proof of its own. The AIJ ruled that De-Ford had produced evidence in support of position which is acceptable to him." By his claim such that the hearing should con-separate motion, TVA sought an order stay-tm, ue, m the former, stance, and ruled m

ing enforcement of the Secretary's decision against TVA,m the latter. Certainly TVA pending disposition of th:s appeat Both is free to dispute the propriety of those

=otions were denied by the Secretary.

rulings here, but the key question remains Both TVA (No. 81-3254) snd DeFord (No. whether evidence presented at the hearing 81-3228) have sought review here of the supported those decisions.

Secretary's decision. In additios, DeFord

, a choice must h made among guMing i

seeks review of the Secretary's determina-standards for allocatmg the burden of proof tion that at'torneys, fees and expenses under the antidiscrimination provisions of should be awarded in an amount less than the Energy Reorganization Act, it would r

that which he requested (No. 81-3401). By appear obvious that a court should look to order filed on November 6,1981, a panel of cases construing tee National Labor Rela-thu Court, with one judge dissenting, tions Act (NLRA) rather than to those deal-stayed enforcement of the Secretary's deci-ing with Title VII. See S. Rep. No.95-848, zion. The three petitions were consolidated, 95th Cong.,2d Sess. 29, reprinted in (1978]

and oral argument was heard on November U.S. Code Cong. & Ad. News 7303, 7303; 4,1982.

Consolidated Edison Co. v. Donovan, 673 F.2d 61, 62 (2d Cir.1982). But the distine.

III.

tion makes little difference here. With ~all Several allegations are lodged by TVA niceties aside, once DeFord offered evidence against the procedural and evidentiary from which the inference of illegal discrimi-9 nation couk be drawn TVA had an oppor-4 foundations of the Secretary's decision. As tunity to sh)ow that the actions it took with l

an initial matter,. it is claimed that the I_

burden of proof, with respect to both pro-respect to DeFord were based upon legiti-l duction and persuasion, was misapplied. mate nondiscriminatory reasons. If the evi-l But it is well recognized that the linchpin of dence which was presented at the hearing i

TVA's challenge is and must be a claim that did not carry the day, substituting terms

,. -.3 the Secretary's findings were not supported such as " prima facie case" or " mere pre-

.,.d"*

by substantial evidence. If substantial evi-text"into the AIJ's discourse will not allow

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dence underlay the Secretary's determina-TVA to fare better. ~

tion, reached after a full and fair hearing B.

.j and upon review of the record as a whole,

,Q adjusting the order of proof and dissecting In order to examine the evidence properly the offhand comments of an ALJ would in this case, the essential elements of a Ej

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286 700 FEDERAL REPORTER,2d SERIES dim discrimination claim under the Energy Re-81,'58 L.Ed.2d 109 (1978) (discrimination i

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organi:stion Act must, of course, be deter-established under $ 8(a)(4) of NLRA al.

d.I mined. By its terms, section 5851(a) prt>-

though employee provided no informatio p7 hibits certain employers from discrimina-at all during agency proceeding).

ting in practically any job-related fashion i...

against an employee because the employee

[2] It has also been suggested by TVA G;y participated in NRC investigatory or en-that DeFord should be required to prove.

9*

forcement proceedinsrt The particular ele-that he was treated differently from other !'

$(U,iWp jW ments of a valid discrimination claim would similarly situated participants in the NRC appear most obviously to include proof: (1) investigation, but this contention as well

!I that the party charged with discrimination must be. rejected. Inclusion of such a re.

[f :

is an employer subject to the-Act; (2) that quirement among the elements of a clai:r. I e 1; the complaining employee was discharged would take no account of the possibility l

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or otherwise discriminated against with re-that more than one pe: son might be ex. ~

spect to his compensation, terms, conditions, posed to the same type of discrimination. !

or privileges of employment; and (3) that The statute is aimed at preven;ing intimi. l the alleged discrimination arose because the dation, and whether the scope of such acth. i employee participated in m NRC proceed-ity happens to be narro., cr broad in a ing under either the Energy Reorganization particular case is of no imoort. An emplov- !

Act of 1974 or the Atomic Energy Act of k

er should not escape liabili.v upcn an othet. I 1954. In light of the statutory language wise valid claim, for example, sclely be-itself and such underlying legislative histo-cause it chose to discriminate against three

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ry as may be found, there would appear t similarly situated employees rather than M l, be no reason for requiring proof that goes further than these three basic elements only one; yet inclusion of the suggested e.:

factor as a required element of proof would i

n-would require.

allow p-eciseiy such a result to obtam. Cf. i l

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[1] It has been suggested by TVA that NLRB v. Jemco, Inc., 465 F.2d 1148,1

i..,

DeFord should be required to show that he (6th Cir.1972), cert. denied,409 U.S.1109,93 disclosed unique evidence to the NRC, or S.Ct. 911,34 led.2d 690 (1973) (refusal to l

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evidence that TVA attempted to hide, in countenance "the somewhat absurd result !

that an employer could never te found is f order to make out a case. This contention

.7_., --

is expressly rejected. The purpose of the ' violation of [section 8(a)(3) of the. NLRA] 50 Act is to prevent employers from discourag- 'long as he ivas careful to treat all employ- !

mg cooperation with NRC investigators,..

and not merely to prevent employers from - ees alike, no matter how destructive of :

y, f; mhibitmg disclosure of particular facts or. plevee rights his conduct may be").

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" types of information. Under this antidis.

Turning to the facts at h:nd, it is not I

'f 71 '4 criminatory provision, as under the NLRA, questioned that TVA is an employer subject Wrjh the need for broad construction of the stat. to the Act, and it is conceded that DeFord I Qy.

utory purpose can be w~ ell characterized as participated in an NRC proceecing within f 75{

"necessary 'to prevent the [ investigating. the purview of the Act. When DeFord was Q:u:aw agency's] channels of information from be-transferred, his rate of compensation was 16hh ing dried up by employer intimidation,'" not changed. The only points that were 1

I

% ed.

NLRB v. Schrivener,405 U.S.117,122,92 controverted at the administrative heari M MI~

S.Ct. 798, 801, 31 L.Ed.2d 79, 82-83 (1972),

in this case, then, concerned whether De-c

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'and the need to protect an employee who Ford suffered a change with respect to I t

% 41 participates in agency investigations clearly terms, conditions, or privileges of employ I

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exists even though "[h]is contribution might ment in the nature of a demotion or other c

f m-h.".

~ be merely cumulative," id. at 123,92 S.Ct.

form of discrimination, and whether the t

"'T at 802, 31 L.Ed.2d at S4. CL NLRB v.

' alleged change of jobs represented disc-imi I f

Retai1 Store Employees Union,570 F.2d 586 nation against him because he participated h

(6th Cir.), cert. denied,439 U.S. 819,99 S.Ct.

in the NRC investigation.

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.. w DeFORD v. SECRETARY OF LABOR ca.u oer.uzsi asss) 20 -

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rimiKtion

[3] The Secretary, adopting'the ~ opinion immediate supervisors and had not deve EN S L R A al.

af the ALJ, found that DeFord suffered a

fornntio~n demotion upon being transferred front one' oped personality conflicts that would inter-Q; 91 job to another because "the new job ^was far fere with effective performance of his job.

-!. 5 less attractive and prestigiousthan his pre-There was evidence that DeFord was sin-d i

d by TVA vious position," and because ?[h)esas as-gled out, in what was admittedly intended

! to prova signed tasks that were below' his proven to be a negative remark, as a "very strong

~f individual H

km cther capabilities and he had no supervisory re-who is instrumental in influ-J1 5Ponsibilities." Moreover, the Secretsey in-encing~the opinion and operation of the I'

the NRC a as we!!

dicated that DeFord received treatment staff and input to management" and that Z

such n re.

which was somewhat less than cordial after such criticism of DeFord as a " strong indi-(f a claim he reported to his new job. Evidence was vidual" did not arise until TVA conducted s:

possibility presented to the effect that DeFord went its internal audit of the NRC's findings.

St be ex-from a position in which he super.viseil sev-Quite simply, there was substattial evi-birtbn.

eral other engineers to a position ih which dence to support the Secretary's conclusion i

hg intimi-he supervised nobody and waal assigned that DeFord was demoted soleiv because he bh acs.

w rk that included certain essentially cleri- ~ NLRB vparticipated in an NRC proc'eding. Cf.

e Wka cal functi ns: that he was moved from an

. Lloyd A. Fry Roofing Co., 651 b employ-ffice f his own to a work table which he F.2d 442,446 (6th Cir.19S1)("In this Circuit, an other-shared with a lower. grade engineer in an if a discharge is motivated 'in part' by an dely be pen r m called "the bullpen " where he employee's protected concerted activities

,, g,,

did not even have a telephone; and that he the discharge siolates section S(a)(1) of the nr than was transferred from a management posi- [NLRAL").

eggested tion in the quality assurance section to a It is obvious that judgments regarding osition in which he was told-even when the credibility of proffered evidence were d * "",

he performed work related to quality assur-required, but they are not to be reviewed f*8,1152 t4 ance-that he would " remain invisible" here. In the Secretary's opinion, alterna-1109,93 with respect to quality assurance, and not tive explanations offered by TVA for the gusal t even sign his name to reports that are ha. actions taken against DeFord either would rd resdt bitually signed by the engineer responsible not bear their own weight or were for other for them.

found in These items of proof, without reasons simply not worthy of belief. Such 1RA) 50 more, represent substantial evidence that an opinion is justifiable in light of the evi-emP107' DeFord was demoted and, in the context of dence, and will not be disturbed.

this case, provide substantial support for a of em-1 tne correlative finding of discrimination

. IV.

made by the Secretary.

Various questions are raised by TVA and a is not The Secretary found "that DeFord's DeFord concerning relief awarded by the L subject DeFord transfer was a deliberate retaliation for his Secretary. For the most part, they are

within cooperation with NRC and his attempts to answerable by reference to rather clear and get his Quality Assurance Engineering sec. unambiguous statutory language. Once brd was tion recognized by the management." discrimination is found that is proNbited by j ]g pon was There was evidence that TVA did not fol. the Act,

' t w:re low its normal procedure in transferring the Secretary shall order the person who a

(hearing DeFord, but rather that it unceremoniously committed such violation to (i) take af-her De-dumped him from the quality assurance see-firmative action to abate th violation,

!pect to tion shortly after the NRC investigation.

e hr other There was evidence that DeFord had re-and (ii) reinstate the complainant to his employ-ceived superior performance ratings prior to former position together with the com-

-i

'At pensation (including back pay), terms, her the the NRC investigation, although TVA

 ?

claimed in defense of the transfer that he cbnditions, and privileges of his employ-iscrimi-had performed badly in his job. There was ment, and the Secretary may order such kip;ted evidence that DeFord worked well with his person to provide compensatory damages

M to the complainant. If an order is issued l } ' fy lpm

~

.j.

.....p w

di M~7 nth?

i 288' 700 FEDERAL REPORTER,2d SERIES

?.W. ?

i

[k..

under this paragraph, the Secretary, at into contortions and " reason" it out of the i

the request of the complainant shall as-statute. Even a cursory reading of section A~

sess against the perron against whom the 5851(b)(2XB) discloses that " compensatory 6-order is issued a sum equal to the aggre-damages" are allowable in addition to ha gate amount of all costs and expenses abatement of discrimination, reinstatement E

(including attorneys' and expert witness with back pay, and restoration of all job-re-

[

fees) reasonably incurred, as determined lated entitlements such as retirement bene-r-

by the Secretary, by the complainant for, fits. On remand, the Secretary will give 15 or in connection with, the bringing of the full effect to all terms of the statute.

complaint upon which the order was is-sued.

During oral argument of this case, men-f f.lir tion was made of a question whether the 42 U.S.C. 5 5851(bX2XB). The remedy Secretary's authority to grant compensato-p fashioned by the Secretary contained sever-ry damages for clainis essentially sounding

,i -

al interrelated components. As the discus-in tort might raise a constitutional issue in sion below indicates,it will be necessary t some future case touching upon the right to remand this case so that the Secretary can revise the entire package.

a jury trial. No such question is presented in this case, and it should be made clear A.

that neither this nor any other constitution.

[4] DeFord has taken issue with the al issue is addressed here.

r Secretary's determination that medical ex.

L penses and other damages which the AI.J B.

C included in his recommendation are not al-DeFord questions the award cf attorneys' j.

Iowable under section 5851. Boiled down to fees and expenses in this case. That issue.

I gj, '

its essence, the Secretary's response is that in light of the way it was hardled in the

=g 7 although Congress provided for "compensa. Secretary's decision, is related to the issue

r >

tory damages" it did not actually mean to of compensatory damages. The Secretary' provide for " compensatory damages." As denied all fees and expenses connected with an explanation for this curious pose, infer-the damages claim because DeFird was not

~

ence is stacked upon inference in support of a claim that the legislative history behind deemed er. titled to prevail on that claim.

section 5851 by some means makes the in-

[5] Sin' this case will be remanded for a-tent of Congress "very doubtful." Thus, ~ consideration of compensatory damages, it the Secretary would in effect suggest that' is obviously appropriate for the Secretary to the reference to " compensatory damages"is] reconsider his decision concerning fees and only intended to protect employees from a. ' expenses. In passing, some add:tional ecm-

{

loss of such things as retirement benefits.[ ments are proper. Section 5321 provides

{

{,

Neither the Secretary's appmach nor his, that once discrimination is shr,wn the Secre-g

._~

reasoning can be approved on this point. tary "shall assess all costs and expenses

{d

• Where language in a statute is clear, there ~.. reasonably incurred for, or in con-is no reason _why construction of the statute s nection with, the bringing of the com-h, should be approached initially by referring; plaint." It is for the Secretary to deter-TQ b. l,j, to its legislative history. Congressional diO mine whether expenses were " reasonably t..

cussion can.be helpful in some instances to incurred," but otherwise no discretion rests

% f' resolve ambiguities, but it should not i>e - in him. Therefore, even if a complainant

...?

relied upon to create them. Here, it is clear does not ultimately receive compensatory r,g# p :

[i~}

that Congress intended to allow "compensa-damages or other particular relief which is y

tory damages," and nothing less. The stat-sought, it would not be proper for the Sec-F~ y ute is not ambiguous on, this point. The retary to deny fees and expenses unless he h ' L.,

Secretary admits, as he well should, that we determines first that they were not "rea-sji+ w.y

-must not read an, atire term out of-the 'sonably incurred." To stat,e the matter oth-l

@ f" statute. In the same vein, we should not go erwise, a lack of success on the merits p..;

Mc.

, A.m N%

6

m

_-m.

- r -,,

.m

it cut of the DeFORD v. SECRETARY OF LAB'OR a.- -

. x.

cmu too r.uai <tess>

289

• Y ling of sectwa should not be viewed as.the talisman of Yompensatory unreasonableness. The statuterefers to re-The remedies provided for by Congress do - $$

rM covery of expenses for "the britiging of the not offer the Secmtary an opportunity to-2 addiuon to reinstatement complaint," and not just to expenses associ-order any type of relief whatsoever that he-

~

Mr "?

a of all job re-ated with individual aspects of a case.

might deem appropriate. He-can onfer 3 M.g

~

abatement of discrimination, restore an em- -9.M

.irem:nt bene-ployee to his job with.all attendant benefits

1. ~4

ary will give Q.'

g. af including back pay, award compensatory,

i

'jji M the statute.

C.

DeFord has objected to the Secretary's damages, and award all reasonable ex-

' ' r3 lis case, men.

.'.}

decision as it concerns reinstatement, on the penses incurred in pursuit of the action.

wh;thtr the basis that it "gives TVA the~ option of But the statute does not by its terms allow where to assign him, ind falls short of the creation of administrative leave that l

, compensato-

ally sounding

.ional issue in

[DeFord's] statutory right to be reinstated would not otherwise exist.

4 to his former position." DeFord's argu-The position of TVA appears to be that if J

n the right to ments on this point reflect hilstrust of an leave granted in this case by the Secretary~2 1 is presented employer that has dixtiminated against is set aside, DeFoni might either have the

~

e mada ckar him previously in making jotrassignments, option of exercising or be compelled to ex-

. constitution-l and it cannot lie said that:h'is mistrust is ercise certain rights under the Federal Em-ployees' Compensation Act (FECA), 5 unfounded. Throughout this proceeding, it g

i U.S.C.

might be recalled, TVA has contended that 8101 et seq. To put the matter in l

DeFord was not demoted at all when he perspective it can be said that such rights was transferred from the are representative of " terms, conditions, of attorneys, That issue, section to "the bullpen." quality assurance and privileges" which are potentially availa Yet the Secre-tary's decision would allow TVA, ostensibly ble to DeFord as an employea of TVA. See ndled m, the 16 U.S.C.

in the exercise of its discretion, to either 831b. At first g!ance, a hybrid to th: issue Ie S*C" t*f7 k a " instate DeFord to his old job or give him remedy of sorts under both section SSSI and re mected with comparable position."

the FECA wot.1d not appear to raise any j

difficulty.

~

Upon closer examination, how-

'on! was not

?

[6] Section 5851(bX2XB) provides that ever, we find that no such result is we.rrant-that claim.

I ed here.

an aggrieved party shall be reinstated "to

{ clear mdication why this language cannot his former position."

-manded for In the absence of a The Secretary has addressed three areas

~f * * *,* t of concern should the FECA come into play, be given effect. the Secrstary shall do pre-It is suggested first that the FECA only g fees and cisely that on remand. There is no sign in assures reinstate.nent to a particular job the record that DeFord's previous job has when an employee recovers from a disabili-

'd "*I al provides ceased to exist, and in any event it would ty and is able to return to work within one certainly appear that the Secretary or per-second, that compensation awarded a the Secre-year; gd expenses WFd u opW 6 TVA, should under the FECA is not premised upon fault, control the decision whether an alternative is not reviewable by a court, and may not E' # I" job must be foundJ be adequate in a given case; and third, that f tha com-because FECA entitlements are not depend-4 y to d:ter-fd & h

&t d fault-a~1 ation rests E

grounded orders issued by the Secretary fmplainant The Secretary ordered that DeFord be All of these concerns might d

might be lost.

placed retroactively on administrative leave be touched upon by noting that availability Fpensatory I

mth full pay. This remedy is challenged by of FECA remedies should not detract from mf whien is TVA as an invention of " terms, conditions. the authority granted in 42 U.S.C. % 5651.

I cr the #

and privileges" which were not previously That is to say, a broad statutory scheme 4 unless he 1 available to DeFord in connection with his giving rights generally to all federal em-

'!! ? J not "re3-i employment and which should not be made ployees should not prevent enforcement of "m7 patter oth-I available under the guise of making him a provision quite specifically intended to the men,ts

whole, remedy unlawful discrimination.

>} 9 Thus, it might be said that because section it 7

, i Uj

' gf.

-1

. _a s..

-e

....+@..s

. ~. w ce p.

pp.d "'

290 700 FEDERAL REPORTER,2d SERIES e-e l"..

b_ a, 5851(b)(2)(B) expressly states that the Sec-an " injury" is more specifically limited to retary shall order reinstatement to a job, an a

WE' employee should be reinstated without re-

" injury by accident" or by "a disease proxi-Hhwr c

mately caused by the employment." 5 i:

gard to whether such a right exists under U.S.C. $ 8101(5). It has been held that t

-? J the FECA; because the statute states that "[t]he type of injuries covered in 5 U.S.C back pay and other forms of compensation 6 8101(5) does not appear to include pri:

51.

can be awarded, they may be awarded; and such claims as for discrimination, men-C if a deterrent effect flows naturally from to :

execution of these statutorily author::ed tal distress, or loss of employment." Sulli-Tor

. -- x

[f van v. United States, 428 F.Supp. 79, 31 the powers, so be it. But our analysis should (E.D.Wis.1977). We are inclined to agree. Ur_

hardly stop at this point, for it is not really y

possible in a case such as this to draw a line Neither the language of the statute itself 191 that would allow remedies under section nor the policy foundations underlying work-era 5851 and the FECA to coalesce.

men's compensation acts support a conclu-mu sion that intentional discriminaticn s to be file

[7] Resort is proposed here to the FECA viewed as causing an " injury" subject to TF because of an objection to the Secretary's FECA coverage. True it is that compensa-ind grant of administrative leave. Yet the tion acts are habitually given a liberal con-cast FECA represents little or nothing more struction in orcer to effectuate their in-wh!

than a workmen's compensation act. See, tended purposes, e.g., United States v. Udy, mig e.g., Avaschi v. United States,608 F.2d 1059 381 F.2d 455, 456 (10th Cir.1967), but it tra:

(5th Cir.1979); 20 C.F.R. f 10.150. One should also be recognized that "[s]uch a rule elec provision, 5 U.S.C. l 3151, does refer to of construction is for the benefit of the of

• Feemployment rights, or " civil service reten, employee so that liberal coverage under the to5 tion rights" of emp;oyees, but it is arguable Act may be provided," DeSousa v. Panams 6S

.[~ ~ ~ ~

that a TVA employee cannot rely upon such Canal Co., 202 F.Supp. 22, 25 (S.D.N.Y.

rights. See, e.g., 16 U.S.C. $ 831b; 5 1962), and is not a device to be used for regg U.S.C.

5596(c). However that may be, applying the FECA when it has no applica-avo upon mcognition that the FECA is primari. tion or where stretching its appl: cation t:,re:

Jy intended as a measure to provide com, would be unjust, id. at 25; acconi,20 C.F.R.

s.

pensation, we must also recognize that s 10.1(c).

woq

.J~

E utu4 where FECA benefits are available they Even.if the FECA could be read such l

ordinarily constitute an employee's exclu-that it might otherwise apply to this case, *[e T

sive remedy. See 5 U.S.C. 6 8116(c); Unit-' DeFord should be allowed to make an elec-t ed States v. Demko,385 U.S.149,37 S.Ct.

tion between alternative payments and ben-U, ~

i 382,17 L.Ed.2d 258 (196S). Thus we are efit3 due him under administrative frame-

,3f 20 con. fronted by the question whether DeFord. wor' ks provided by Congress. Under a rath-y should be required to seek compensation or er specific provision of the FECA:

y L{'{

any other type of relief solely under the and je= ctj r FECA. This prospect, which arises despite An individual entitled to benefits under fas

,,this subchapter because of his injury, or p5 clear language in section 5851 justifying othe g %'

full compensation for DeFord, most heavily

. because of the death of an employee, who ecy p$ g mfluences our deternunation that a so-

also is entitled to receive from the United

$ gd

States under a provision of statute other Q+ ="

called hybrid remedy is inappropriate in'this; Sta

th

in this subchapter payments or bene-ma5 We conclude, after careful study, '* hts for that injury or death (except pro case.

g,%

that relief fashioned wholly under section 313

. ceeds of an insurance policy), because of

/

U.S gg, 5851 is appropriate here.

. i service by him (or in the case of death, by Ef.w. l.

The FECA provides generally for com-. the deceased) as an employee or in the

.(2d/

(19s i

f; g pensation upon disability or death of em-armed forces, shall elect which benefits

128, yg, A ployees due to " personal injury." 5 U.S.C.

he will receive The individual shall dur,-<-::

6 8102. To the extent that the term is

~ maka the election within 1 year after the the ;

case 7 21 potentially relevant here, the definition of injury or death or within a further time

'tosd

%P!Ef

~

MJ.,

__r-

~~

~

u.%

3 1

fically limited to

.< DeFORD v. SECRETARY OF LABOR

~

291 Che as 700 F.24a81 (Isas) allowed for good cause by the Secretary the intent of Congress would be served "i

49 "a disease proxi-of Labor. The election.when made is should we require that DeFord pursue a smployment." 5 irrevocable, except as otherwise provided claim under the FECA, when by statute the s been held that by statute.

Secretary has been granted ultimate au-u.

pered in 5 U.S.C.

5 U.S.C. $ S116(b). We do n$t question the thority to deny coverage. Additional in-bppear to include principle that DeFord would not be allowed quiry might be necessary in this area were krimination, men-to maintain a civil action under the Federal bloym;nt." Sulli-we to rest our decision upon this premise, Tort Claims Act or in tort at common law if since the Secretary has delegated certain of

$ F.Supp. 79, 81 the FECA is applicable, see, e.g., Joyce v.

his powers under the FECA such that his inclined to agree.

United States, 474 F.2d 215; 219 (3d Cir. designees have authority "except as is oth-the statute itself 1973), but we are mindful of.the key consid-erwise provided by law," 20 C.F.R.

10.2; underlying work-eration that "an injured Federal employee support a conclu-must seek administratiye relief before he but we need not venture further in light of our determination upon other grounds that minttion is to be files suit," id. at 219. See also White v.

no substantial question regarding FECA jury" subject to TVA, 53 F.Supp. 776 (E.I).Tenn.1945). If, coverage is present here.

' that mmpensa-indeed, the FECA potentially applies to this s

ven a liberal con-case at all then DeFord.had two avenues by ectuate th:ir in-which, under the Secretary's supervision, he Y-

ed States v. Udy, might obtain compensation in an adminis.

In light of the foregoing, we hold that Cir.1967), but it trative proceeding. He obviously made an the Secretag's finding of unlawful discrim-kt "{s]uch a rule election between the two and we are aware ination is supported by substantial evidence.

e benefit of the of no reason why he should not be allowed As to the matter of relief, DeFord should ba

,verage under the to do so, particularly in light of 5 U.S.C.

awarded compensatory damages insofar as Sousa v. Panama i S116(b).

they are found to be appropriate, and he l

22, 25 (S.D.N.Y.

Finally we might add that our conclusion should receive reasonable attorneys' fees le to be used for regarding inapplicability of the FECA and costs, as provided by statute. Absent lit has no applica-avoids, for reasons that spring from an en. circumstances not disclosed in this recorti, h its application tirely separate basis, the creation of what he should be reinstated to his former job.

record. 20 C.F.R.

would certainly appear to be a paradoxical The Secretary shall otherwise fashion ap-situation. Where a " substantial question" propriate relief, including restoration of all Id be read such

(

exists with respect to FECA coverage, Con-benefits and entit!ements due DeFord. In 5p.q to t is case.

l gress has left relution of that questior to conjunction v ith rainnatement, the com-to make an elec-the Secretary. Avasthi, supra,608 F.2d at pensation and damages provided for by t

1061: Reep v. United States,557 F.2d 204, 9.""ive frame-207 (9th Cir.1977); Jovce, supra,474 F.2d at statute should allow the formulation of "a 3 ""

mstrat l

219. Moreover, the Secretary's decision is: complete and proper remedy, without the 3.

Under a ra:h-FECA:

.g g g gg,, g g creation of administrative leave or other and with respect to all questions of law and to b2nefits un e, fact; and (2) act subject to review by an-Accordingly, this case will be remanded of his mjury, o other official of the United States or by a to the Secretary for further proceedings

.n :mployee, who court by mandamus or otherwise." 5 U.S.C.

c ns stent wM this opuuom from th3 United 5812S('b). See, e.g.,

Waters v.

United of statute other States, 458 F.2d 20 (8th Cir.1972); Soder-ymtnts or bene' man v. United States Civil Serv. Comm'n,

ath (exc pt pro-313 F.2d 694 (9th Cir.1962), cert. denied,372

licy), because of U.S. 968, S3 S.Ct.1089,10 L.Ed.2d 131

}""f"'5%

a ese of death, by (1963); Blane v. United States,244 F.2d 708 ployee or in the (2d Cir.), cert. denied,355 U.S. 874,78 S.Ct.

L which benefits 126, 2 L.Ed.2d 79 (1957). In the instant individual shall case the Secretary strenuously argues that 1 year after the the FECA has no application. It is difficult 3 o furthy time to see that either the interests of justice or ww w