ML20082G221

Decision Finding Unlawful Discrimination & Awarding Employee Compensatory Damages

ML20082G221
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 8311300119
Download: ML20082G221 (20)

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Nos. 81-3228 81-3254 81-3401 UNITED STATES COURT OF APPEAL.S FOR THE SIXTH CIRCUlT WIuIAM DAN DEFORD, Petitioner,

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• Nt k-t SECRETARY OF LABOR, E

Respondent, and ON PE'TTTION fOr Re-view of an order of TENNESSEE VAEEY AtmIORITY, the Department of Intervenor.

Labor.

TENNESSEE VALLEY AvrIIORITY, Petitioner, M

v.

SECRETARY OF LABOR, Respondent.

i Decided and Filed February 10,1983 Ty &_W.0 %m,%y Before: ENcEL and MERarrr, Circuit Judges; MOatuN, Chief District Judge *

• The Honorable L. Clure Morton, Chief District Judge, United States District Court for the Middle District of Tennessee, sitting by designation.

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2 DeFord v. Sec'y of Labor, et al.

Nos. 81-3228, etc.

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AfonTox, Chief District Judge. This appeal concerns three

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consolidated petitions for review of Orders rendered by the

,bi Secretary of the United States Department of Labor (Secre-tary) pursuant to the Energy Reorganization Act of 1714, as f ;

amended, 42 U.S.C. 5 5851, and regulations promulgated h

I thereunder. Petitioners are William Dan DeFord (DeFord) and the Tennessee Valley Authority (TVA). The Secretary, in sum, awarded relief to DeFord upon finding that TVA had illegally disdiminated against DeFord because he assisted or participated in a Nuclear Regulatory Commission (NRC) in-vestigation at a TVA facility.

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i DeFord was initially employed by TVA in 1971, and worked M M '5 h' in the Electrical Engineering Branch of the OfEce of En-g' gineering Design and Construction. During 1972 DeFord was assigned to TVA's Quality Engineering Branch and became a manager in the Quality Assurance Engineering Section. His ij responsibilities included ascertaining that various construction j

standards and specifications were complied with at TVA's h

Sequoyah Nuclear Plant, which was being built near Chatta-

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nooga, Tennessee.

L During July 1980, ofBeials from the NRC made a routine

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inspection of the Sequoyah project. DeFord participated in g

J the NRC investigation and discussed certain problems and concerns of the quality assurance staff with NRC personnel Two weeks after the NRC investigation was conducted, TVA j.,

ofEcials met with NRC representatives in Atlanta, Georgia.

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l$,MGM At this meeting, NRC ofHeials apprised TVA of the NRC's h

findings and rather strongly emphasized in particular their

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concern with respect to quality assurance on TVA construc-f j l

l tion sites. Along the way, TVA began its own investigation of the NRC findings. DeFord was among the quality as-j surance staff members who were interviewed as part of this internal audit.

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DeFord v. Sec'y of Labor, et al.

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l On August 11, 1980, DeFord was notified that a problem in his section had been revealed by the TVA audit. He was told that he was being transferred back to the Electrical

. l Engineering Branch. Upon reporting to that division DeFord j

allegedly found that he was not welcome, that he was no l

longer a supervisor, and that his job was by no means secure.

On September 10, 1980, DeFord filed a claim with the Department of Labor, alleging that his transfer was the result of deliberate discrimination by TVA against him due to his l

y participation in the NRC inspection process. He stopped j

working on September 11, 1980, and was hospitalized ten 4

days later for observation. DeFord has testified that upon suffering the embarrassment and humiliation that accom-panied his transfer, he developed chest pains, encountered g' y~-W %. 5 3 difficulty in sleeping, and began suffering from severe de-5 g,

pression. A lengthy and complicated administrative process,

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set in motion by the filing of the aforementioned discrimin-i-

ation claim, has culminated in the instant proceeding.

IL After an ex parte investigation of DeFord's charge was conducted, in accordance with 42 U.S.C. S 5851(b) and applicable regulations, the Administrator for the Labor De-partment's Wage and Hour Division notified TVA by letter g

l that "the weight of evidence to date" supported DeFord's l

claim of discrimination. Further, the letter stated that relief should be accorded,. as follows:

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hir. William Dan DeFord is to be reinstated to either Did6wi[?Ehf-2, the hi-5 Quality Assurance Engineering Section su-pervisory position held by him prior to August 11, 1980, or hfr. DeFord is to be assigned to a com-parable hi-5 supervisory position which is acceptable to him.

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hir. DeFord is to be given written assurances that his conditions and privileges of employment will not l

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Nos. 81-3228, etc.

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be adversely affected as a result of his involvement in the U. S. Department of Labor's action under the

,f Employee Protection Provisions of the Energy Re-y organization Act (ERA) Public Law 95-601, Section 21, 42 U.S.C. 5851.

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3.

Mr. DeFord is to be placed on administrative leave (leave with full pay) which will cover the period from September 12, 1980, until such time that com-petent medical authorities determine that he is able to return to work..

4.

Mr. DeFord is to be reimbursed for all medical and/

or legal expenses incurred by him during the period from August 11, 1980, to date.

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Both DeFord and TVA appealed from this decision to the g?

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Labor Department's OfHee of Administrative I.aw Judges.

g After a full, formal hearing in Knoxville, lennessee, the f

administrative law judge ( ALT) essentially concurred with the decision referred to above. In addition, the ALJ found that DeFord was entitled to compensatory damages in the amount of $50,000. Although the ALJ's written decision was phrased in mandatory terms, it was forwarded in due course to the Secretary as a " recommended decision" alcng with the hearing record.

Upon review of the ALJ's findings of fact, conclusions of h

law, and proposed order, the Secretary issued a ruling which q

stated, in pertinent part, as follows:

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On the basis of the entire record, it is my conclusion that the findings and conclusions in the Judge's recom-

- mended decision of January 7,1981, with respect to i

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,w.3 a.., g whether DeFord was discriminated against in violation i L

.%so of the Act are supported by the evidence in the record j

l and are proper, and I adopt them as my own. Accord-l ingly, I find that the respondent, the Tennessee Valley l

Authority, violated Section 210 of the Act (42 U.S.C.

5851) by discriminating against the complainant because l

of activitics protected by that Section.

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DeFord v. Sec'y of Labor, et al.

5 1 do not agree with the Administrative Law Judge's conclusion that medical expenses and damages to repu-tation resulting from discrimination prohibited by the Act are recoverable by a claimant under 42 U.S.C. 5851.

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I find that the Administrative Law Judge erred in hold-ing that damages for these items may be recovered under j

that provision. Such items do not come within the intended scope of tha remedy provided thereby. See the legislative history of 42 U.S.C. 5851,1978 U.S. Code Cong. and Adm. News, p. 7303.

Accordingly, the respondent, the Tennessee Valley A thority, is hereby ordered:

(1) to reinstate William Dan DeFord to the su-pervisory position held by him immediately prior to August 11, 1980, at the same grade y'.5* ~.. -.. _Am and pay, and under the same terms, conditions, g

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• q and privileges of employment, or to assign him

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~p to a comparable position with comparable re-sponsibilities at the same grade and pay; (2) to place him on administrative leave with full pay, rather than sick leave, from September i

12,19S0, until such date as he is able to return i

to work; I

(3) to cease discrimination against him in any j

manner with respect to his compensation, j g terms, conditions, or privileges of employment because of actions by him to carry out the purposes of the Energy Reorganization Act of 1974, as amended, or because of his partici-pation in this proceeding; hh.

.. 5bB (4) to pay him the aggregate amount of all costs and expenses (including attorney fees) rea-sonably incurred by him in connection with this proceeding, as shall be determined by me on application together with supporting data, pursuant to 42 U.S.C. 5S51 and ~29 CFR 24.6 (b)(3).

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6 DeFord v. Sec'y of Labor, et al.

Nos. 81-3228, etc.

Pursuant to this decision, the Secretary by subsequent order

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awarded certain attorneys' fees and expenses to DeFord in

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the total amount of $9,392.00. This figure reflected a deduc-tion of fees and costs which the Secretary viewed as having been incurred in pursuit of "a claim for damages for pain,

.i suffering and mental anguish, injury to reputation, and medi-cal expenses allegedly suffered by DeFord." Because the Secretary held that such damages were not recoverable, he also disallowed fees and expenses which he deemed related to such a claim.

DeFord sought by motion to have the Secretary amend his decision as it touched upon reinstatement to the same position "or... to a comparable position," such that rein-

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statement would instead be ordered to the same position "or

... to a comparable position which is acceptable to him."

By separate motion, TVA sought an order staying enforcement

'4 of the Secretary's decision pending disposition of this appeal.

Both motions were denied by the Secretary.

Both TVA (No. 81-3254) and DeFord (No. 81-3228) have sought review here of the Secretary's decision. In addition, DeFord seeks review of the Secretary's determination that attorneys' fees and expenses should be awarded in an amount less than that which he requested (No. 81-3401). By order filed on November 6,1981, a panel of this Court, with one l

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f judge dissenting, stayed enforcement of the Secretary's deciw j

sion. The three petitions were consolidated, and oral argu-i ment was heard on November 4,1982.

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Several allegations are lodged by TVA against the pro-cedural and evidentiary foundations of the Secretary's decision. As an initial matter, it is claimed that the burden of proof, with respect to both production and persuasion, I

was misapplied. But it is well recognized that the linchpin of TVA's challenge is and must be a claim that the Secretary's

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]fh findings were not supported by substantial evidence. If sub-

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'I stantial evidence underlay the Secretary's determination, l [

Ed reached after a full and fair hearing and upon review of the j

record as a whole, adjusting the order of proof and dissecting j

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the offhand comments of an ALJ would become academic i

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exercises of little or no value.

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to the burden of production. for DeFord took on that burden just as TVA now argues that he should. As to the burden of j [p y

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persuasion, TVA openly questioned whether DeFord had

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L produced evidence supporting his claim before it put on any proof and also after it brought forth proof of its own. The i

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ALJ ruled that DeFord had produced evidence in support c

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.fF-former instance, and ruled against TVA in the latter. Cer-

1. 4 tainly TVA is free to dispute the propriety of those rulings

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here, but the key question remains whether evidence pre-g*

?.7g sented at the hearing supported those decisions.

f If a choice must be made among guiding standards for 4

r allocating the burden of proof under the antidiscrimination W ' F#

provisions of the Energy Reorganization Act, it would appear f

. ng,N obvious that a court should look to cases construing the Na-M

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tional Labor Relations Act (NLRA) rather than to those 4~

&L yjg.., TN dealing with Title VIL See S. Rep. No.95-848, 95th Cong.,

2d Sess. 29, reprinted in [1978] U.S. Code Cong & Ad. News g

7303, 7303; Consolidated Edison Co. v. Donovan, 673 F.2d g4..Q..w # ((.Of. ;,

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.A O 61,62 (2d Cir.1982) But the distinction makes little differ-j ence here. With all niceties aside, once DeFord offered evi-W.V dence from which the inference of illegal discrimination j

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actions it took with respect to DeFord were based upon iMiaka.::

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.g..4c ;. fro legitimate nondiscriminatory reasons. If the evidence which A

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By its terms, section 5851(a) prohibits certain employers

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against an employee because the employee participated in

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.i NRC investigatory or enforcement proceedings. The par-

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....y ticular elements of a valid discrimination claim would appear L

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most obviously to include proof: (1) that the party charged sh.gw.,. m,

with discrimination is an employer subject to the Act; (2) w 4,d that the complaining employee was discharged or otherwise J

disenminated against with respect to his compnsation, terms, y%:2.l.i..yQ'p!.

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conditions, or privileges of employment; and (3) that the N' h.iM;,('(.bdd.M'.;'

7l alleged discrimination arose because the employee partici-pated in an NRC proceeding under either the Energy Re-organtzntion Act of IW4 or the Atomic Energy Act of 1954.

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required to show that he disclosed unique evidence to the NRC, or evidence that TVA attempted to hide, in order to

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((.N' 4.d purpose of the Act is to prevent employers from discouraging

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cooperation with NRC investigators, and not merely to pre-sp c. "

vent employers from inhibiting disclosure of particular facts MF;V N N or types of information. Under this antidiscriminatory pro-

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yision, as under the NLRA, the need for broad construction i

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DeFord v. Sec'y of Labor, et al.

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sary 'to prevent the [ investigating agency's] channnels of i (

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exists even though "[h]is contribution might be merel cumu-i i

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u lative," id. at 123,31 L Ed. Ed at 84. Cf. NLRB v. Retall i

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this contention as well must be rejected. Inclusion of such a

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Ifg be exposed to the same type of discrimination. The statute j I-A

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ployees rather than only one; yet inclusion of the suggested it chose to discriminate against three similarly situated em-1 f"

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such a result to obtain. Cf. NLRB v. Jemco, Inc., 465 F.2d

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1138,1152, (6th Cir.1972), cart. denied, 409 U.S.1109, 93 S. Ct. 911,34 L Ed. 2d 690 (1973) (refusal to countenance r

"the somewhat absurd restit that an employer could never be N.

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as he was careful to treat all employees alike, no matter how T.-

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Turning to the facts at hand, it is not questioned that TVA i

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DeFord participated in an NRC proceeding within the pur-W.

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view of the Act. When DeFord was transferred, his rate of d

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1 compensation was not changed. The only points that were

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hj m.rf concerned whether DeFord suffered a change with respect l

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to terms, conditions, or privileges of employment in the u,?r3 yfWM (w.4 @fp q h.

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nature of a demotion or other form of discrimination, and C' ' W ! b d f. j @,Q $ il whether the alleged change of jobs represented discrimination b '.J N U 7 d W E I %g i p

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against him because he participated in the NRC investigation.

QjhMGnjfy The Secretary, adopting the opinion of the ALJ, found that

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Ad DeFord suffered a demotion upon being transferred from one l

sggjM/JQ DJM job to another becau:e "the new job was far less attractive

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and prestigious than his previous position," and because "[h]e

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'"O was assigned tasks that were below his proven capabilities and he had no supervisory responsibilities." Moreover, the q

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Secretary indicated that DeFord received treatment which

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job. Evidence was presented to the effect that DeFord went was somewhat less than cordial after he reported to his new G;/W. %' igigjQ'i'ggp/j{kk]

... T;).1 from a position in which he supervised several other en-c fw gineers to a position in which he supervised nobody and was

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ti ns; that he was m ved fr m an flice f his own to a work A" #')h1 7

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i table which he shared with a lower-grade engineer in an W.

open room called "the bullpen," where he did not even have i

I a telephone; and that he was transferred from a management d$

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he was told - even when he performed work related to l.', g(s,g..,.?,..

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fim, quality assurance - that he would " remain invisible" with y

respect to quality assurance, and not even sign his name to

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. gt for them. These items of proof, without more, represent i

t/.= *P':N..-o. : y N.ff".i substantial evidence that DeFord was demoted and, in the L

. 4w n

' " -

.g.

context of this case, provide substantial support for the cor-

_i/,

M~SMY.4p relative finding of discrimination made by the Secretary.

The Secretary found "that DeFord's transfer was a deliber-f' y=! ya i ate retaliation for his cooperation with NRC and his attempts I

e eg".

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Nos. 814228, etc.

DeFord v. Sec*y of Labor, et ?.

11 t

o

. ;.(..:

\\

9 It'W{" p..;..

MTM.9,

',yrhgg to get his Quality Assurance Engineering section recognized g y' by the management." There was evidence that TVA did not 7 "4 P

i follow its normal procedure in transferring DeFord, but rather i

Ui that it unceremoniously dumped him from the quality as-

.t" E

5 9 y! 8%. ~dd"., rf.~

was evidence that DeFord had received su erior erformance

- l surance secti.on shortly after the NRC investigation. There

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i-3 p.

I.

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ratings prior to the NRC investigation, although TVA claimed G l [d.h, M 7-r d k s.

7 in defense of the transfer that he had performed badly in his M 9. y;. &:. a M w' Q..ehMObMi[.gp.

job. There was evidence that DeFord worked well with his i

immediate supervisors and had not developed personality j

LL conflicts that would interfere with effective performance of g.

y" 7 @g -

his job. There was evidence that DeFord was singled out,

.g i

g in what was admittedly intended to be a negative remark, i i g{g' jf.

as a "very strong individual... who is instrumental in I

~

influencing the opinion and operation of the staff and input

. l

~

to management" and that such criticism of DeFord as a

$[@[h,

,'[

" strong individual" did not arise until TVA conducted its

]Qb,P!?q.

L internal audit of the NRC's findings. Quite simply, there was

QTIigfji substantial evidence to support the Secretary's conclusion

,h:E S/ W g that DeFord was demoted solely because he participated in e

94QMTf,yg.:!',.%"$

rt an NRC proceeding. Cf. NLRB v. Lloyd A. Fry Roofing Co.,

' 9. r'.;.,p.;:.

.. 3 651 F.2d 442, 446 (6th Cir.1981) ("In this Circuit, if a M

3g, discharge is motivated 'in part' by an employee's protected 1

.o m

concerted activities the discharge violates section 8(a)(1) k l

of the [NLRA].").

. 9. v ': m,

ef It is obvious that judgments regarding the credibility of n.g p T4 y

proffered evidence were required, but they are not to be re-a

(

ehy Y.1 viewed here. In the Secretary's opinion, alternative explana-M l

W.

'2p~ 3 d" Y tions offered by TVA for the actions taken against DeFord

(

either would not bear their own weight or were for other L

E F.G.3; Nf6; 7s' %jk #fS;'cl'$g[ M reasons simply not worthy of belief. Such an opinion is justi-lt W,

y fiable in light of the evidence, and will not be disturbed.

1

'2;' '..

IV, l

'.~

", ' - i'.'yy

.l Various questions are raised by TVA and DeFord con-

' : +. fh.:. ye cerning relief awarded by the Secretary. For the most part, O

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p 12 DeFord v. Sec'y of Labor, et al.

Nos. 81-3228, etc.

J k

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kb INS : -

they are answerable by reference to rather clear and unam-diQ.b}$JNflC }%i[W.,'

biguous statutory language. Once discrimination is found q

5 M

iwWG that is prohibited by the Act, I

a..

s i d. Qt $, r ' W >f e [4$Pi$' ?

the Secretary shall order the person who committed such w s.

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'7 4IhM, bf$.5 violation to (i) take affirmative action to abate the viola-l 6' Q'.A pih.Q{;,$A.'i.W

• tion, and (ii) reinstate the complainant to his former

.,y ? @ f*.'.'jfk ; MS, '.

position together with the compensation (including back b

i;x

~ ' " W?J pay), terms, conditions, and privileges of his employ-ment, and the Secretary may order such person to provide

' w.t % c--,9.- y. a $

compensatory damages to the complainant. If an order is

' ' h-5--

47 NDNNN;U..

issued under this paragraph, the Secretary, at the request

-4'iP$$5.N, $7hhude7l of the complainant shall assess against the person against Sk

.?;

whom the order is issued a sum equal to the aggregate I"$;b@@NM,9'[h.

dM.

amount of all posts and expenses (including attorneys

• and expert witness fees) reasonably incurred, as de-termined by the Secretary, by the complainant for, or in ww MP e.p?M4E,1-7,m Q' M connection with, the bringing of the complaint upon which the order was issued.

. y :

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c.n..$p.-b'.

. A.1..i.

2 w'

pq 42 U.S.C. 6 5851(b)(2)(B). The remedy fashioned by the A -@Pl%g$

4f-Secretary contained several interrelated components. As the M

.r.

' 'ngC "uf discussion below indicates, it will be necessary to remand ir n

W :Ji:L W/fkNM this case so that the Secretary can revise the entire package.

f DeFord has taken issue with the Secretary's determination l

fN.s.:_.

.$;$$,..?f that medical expenses and other damages which the ALJ in-N.t ' *TE.? =,.W.9d;i cluded in his recommendation are not allowable under section 1 :.

~-f y.d 5%.

5851. Boiled down to its essence, the Secretary's response is m v o g;.ep 4

that although Congress provided for " compensatory damages" 1

A

% ;Q,T,.' : 7 % p ';*,e it did not actually mean to provide for " compensatory dam-NO ages." As an explanation for this curious pose, inference is

-' F stacked upon inference in support of a claim that the legislative l

l J. " is.

history behind section 5851 by some means makes the intent of Congress "very doubtful." Thus, the Secretary would in l

effect suggest that the reference to "co:npensatory damages" l

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Nos. 81-3228, etc.

DeFord v. Esc'y of Labor, et al.

13 s.

e d @.ji Jg dkikk.NTMsk '

is only intended to protect employees from a loss of such things hhh.("

as retirement benefits.

flh8NfMA f.Q1.

Neither the Secretary's approach nor his reasoning can be f

.QI$$$23M4'[-.

approved on this point. Where language in a statute is clear, 15:$hh.'i)3%

there is no reason why construction of the statute should be i

...y-Jgs:.g 4 6.4% $.

approached initially by referring to its legislative history. Con-j

% 4/:p 4. g1sj k.~.M7.

gressional discussion can be helpful in some instances to lg:;g.J:

resolve ambiguities, but it should not be relied upon to create j

.p.. m 4,a.f -

them. Here, it is clear that Congress intended to allow "com-

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j

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p pensatory damages," and nothing less. The statute is not am-r.s

=

i i

%;tig biguous on this point. The Secretary admits, as he well should, i

3 Mk'Od',DME.TI _

that we must not read an entire term out of the statute. In 4

gd'R.ct?

f the same vein, we should not go into contortions and "rea-i ge gip.?v'dif N.

son" it out of the statute. Even a cursory reading of section J

l m '

5851(b)(2)(B) discloses that " compensatory damages" are l

. !/Nm.1 allowable in addition to abatement of discrimination, rein-a

. J.

+ - c, w c v

.2.. 'M;:g:s statement with back pay, and restoration of all job-related d

,-4 M, M $hj:

retary will give full effect to all terms of the statute.

entitlements such as retirement benefits. On remand, the Sec-

]'. ~ -

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During oral argument of this case, mention was made of a l

'M.

question whether the Secretary's authority to grant compensa-J g

y.

't?,md.% e45< Mda(.

tory damages for claims essentially sounding in tort might raise

)

s jg!jpg a constitutional issue in some future case touching upon the right to a jury trial. No such question is presented in this case, and it shoilld be made clear that neither this nor any other 7

A;s

.t.

constitutional issue is addressed here.

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B.

N DeFord questions the award of attorneys' fees and expenses l

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. m.,

in this case. That issue, in light of the way it was handled in g

n..

.s the Secretary's decision, is related to the issue of compensatory damages. The Secretary denied all fees and expenses con-

. /. ;,W, nected with the damages claim because DeFord was not deemed entitled to prevail on that claim.

. C.,.

Since this case will be remanded for consideration of com-f E

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14 DeFord v. Sec'y of Labor, et al.

Nos. 813228, etc.

ls Y pensatory damages, it is obviously appropriate for the Secre-

,,r.y.q d. D.Q..

% (;-

tary to reconsider his decision concerning fees and expenses.

fh M M jk F N.fSple s"$ e !5851 provides that once discrimination is shown the Secretary In passing, some additional comments are proper. Section Yilp., T:

L 8

~,

"shall assess... all costs and expenses... reasonably incurred 6

f P"J

... for, or in connection with, the bringing of the complaint."

3 7 It is for the Secretary to determine whether expenses were I

" reasonably incurred," but otherwise no discretion rests in, i

him. Therefore, even if a complainant does not ultimately

';'y ui receive compensatory damages or other particular relief which

~, f,.

is sought, it would not be proper for the Secretary to deny fees

$ i y.g.:;...

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and expenses unless he determines first_that they were not

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" reasonably incurred." To state the matter otherwise, a lack of

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success on the merits should not be viewed as the talisman of unreasonableness. The statute refers to recovery of expenses for the bnnging of the complaint,_ and not just to expenses

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'i.

4.'

associated with individual aspects of a case.

C.

"p*.

• DeFord has objected to the Secretary's decision as it con-cerns reinstatement, on the basis that it "gives TVA the option of where to assign him,... and falls short of [DeFord's]

..J:,..

Tim "tc.

statutory right to be reinstated to his former position." De-Ford's arguments on this point reflect mistrust of an em-ployer that has discriminated against him previously in making l

@e -

job assignments, and it cannot be said that his mistrust is un-

• '.S'.

P' founded. Throughout this proceeding, it night be recalled, L't TVA has contended that DeFord was not demoted at all when F. "

• Y".iq he was transferred from the quality assurance section to "the n;

-ry bullpen." Yet the Secretary's decision would allow TVA,

~

i ostensibly in the exercise of its discretion, to either reinstate

~

DeFord to his old job or give him a " comparable position."

~

Section 5851(b)(2)(B) provides that an aggrieved party shall be reinstated "to his former position." In the absence of a clear indication why this language cannot be given effect, U

i 4*

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.NYNM Nos. 81322S, *.

DeFord v. Sec'y of Labor, et al.

15 4.-

the Secretary shall do precisely that on remand. There is no I

E Ccd'fta.'.

sign in the record that DeFord's previous job has ceased

.... a ?

jhd'[

di -[iPh'dL -.

to exist, and in any event it would certainly appear that the

'9-bMfp.rpSNM i Secretary or perhaps DeFord, as opposed to TVA, should con-P % G-trol the decision whether an alternative job must be found.

I

• ~

D.

l y

The Secretary ordered that DeFord be placed retroactively

.e k..-s. -

on administrative leave with full pay. This remedy is chal-

..z.

lenged by TVA as an invention of " terms, conditions, and

(

e.

.], ' [ d privileges" which were not previously available to DeFord in i

SidNg.qN.h,[{gd i

connection with his employment and which should not be I

,j.M[d@

bip; made available under the guise of making him whole.

~

,,J.*;,. :..

Z.""N The remedies provided for by Congress do not offer the 4

' g. f'tw: D.7~j Secretary an opportunity to order any type of relief whatsoever f

that he might deem appropriate. He can order abatement of V

. :4.

discrimination, restore an employee to his job with all atten-

, 't..

~ f ; '

dant benefits including back pay, award compensatory dam-

,.. j

. ages, and award all reasonable expenses incurred in pursuit of

~

.l.,.

i.

the action. But the statute does not by its terms allow the

..e creation of administrative leave that would not otherwise exist.

The position of TVA appears to be that if leave granted in N.

..,j[....,.IC'f$l,[.

's,, '

have the option of exercising or be compelled to exercise cer-O this case by the Secretary is set aside, DeFord might either

s. t tain rights under the Federal Employees' Compensation Act 7:

(FECA), 5 U.S.C. I 8101 et seq. To put the matter in jpp> ;.

v', 'j perspective it can be said that such rights are representative

... W.C

/

t:.. z of " terms, conditions, and privileges" which are poten-

! 31@M.

[g tially available to DeFord as an employee of TVA. See k

.~

4~,.

16 U.S.C. s 831b. At first glance, a hybrid remedy of sorts i-under both section 5851 and the FECA would not appear to raise any difficulty. Upon closer examination, however, we find that no such result is warranted here.

~

The Secretary has addressed three areas of concern should the FECA come into play. It is suggested first that the FECA i

1 t.

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a r e. c /

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f 5 % T MM,S W j M. M 16 DeFord v. Sec'y of Labor, et al.

Nos. 81-3228, etc.

-~

al-only assures reinstatement to a particular job when an em-ployee recovers from a disability and is able +.o return to work J

a 411 - -

% 'e h.

within one year; second, that compensation awarded under the FECA is not premised upon fault, is not reviewable by a t

v. s'

-l c court, and may not be adequate in a given case; and third, that because FECA entitlements are not dependent upon fault the deterrent effect of fault grounded orders issued by the Secretary might be lo.C All of these concerns might be touched upon by noting that availability of FECA re.medies j

should not detract from the authority granted in 42 U.S.C.

s 5851. That is to say, a broad statutory scheme giving rights 4'

generally to all federal employees should not prevent enforce-ment of a provision quite specifically intended to remedy un-

.. 9.

en. $...A ~

lawful discrimination. Thus, it might be said that because

4 T%

section 5851(b)(2)(B) expressly states that the Secretary g'. >.

shall order reinstatemerit to a job, an employee should be

~'

f

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reinstated without regard to whether such a right exists under the FECA; because the statute states that back pay and other

,-J

.?

forms of compensation can be awarded, they may be awarded; s.

.[

and if a deterrent effect flows naturally from execution of these statutorily authorized powers, so be it. But our analysis should u

hardly stop at this point, for it is not really possible in a case An such as this to draw a line that would allow remedies under h.

section 5851 and the FECA to coalesce.

d

• C Resort is proposed here.to the FECA because of an objec-

-):

tion to the Secretary's grant of administrative leave. Yet the

)

FECA represents little or nothing more than a workmen's com-l t'

pensation act. See, e.g., Acashti v. United States, 608 F.2d

$%i% -,3, g.,cs' R h 1059 (5th Cir.1979); 20 C.F.R. s 10.150. One provision, 5 b

F

,,, ~.

U.S.C. s 8151, does refer to reemployment rights, or " civil service retention rights" of employees, but it is arguable that a TVA employee cannot rely upon such rights. See, e.g.,16 U.S.C. s 831b; 5 U.S.C. s 5596(c). However that may be, upon recognition that the FECA is primarily intended as a measure to provide compensation, we must also recognize that Y@hk$$k5f,.

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- -=

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^-

L*

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.4 M$f 4.N 9

Nos. 81-3228, etc.

DeFord v. Sec'y of Labor, et al.

17 where FECA benefits are available they ordinarily constitute h

4'. _. !PF" an employee's exclusive remedy. See 5 U.S.C. 5 8116(c);

d

'M,'J

. ;.,;f.g United States v. Demko,385 U.S.149,87 S. Ct. 382,17 L. Ed.

[

2d 258 (1566). Thus we are confronted by the question l

n.

whether DeFord should be required to seek compensation or j

any other type of relief solely under the FECA. This prospect, which arises despite clear language in section 5851 justifying full compensation for DeFord, most heavily influences our

[I determination that a so-called hybrid remedy is inappropriate in this case. We conclude, after careful study, that relief 7

fashioned wholly under section 5851 is appropriate here.

..q.

.,g.,.

The FECA provides generally for compensation upon dis-

, j,J' '.n,o p, f.

ability or death of employees due to " personal injury." 5 U.S.C.

9 8102. To the extent that the term is potentially relevant here, the definition of an " injury" is more specifically limited b.g..

to " injury by accident" or by "a disease proximately caused by T.

the employment." 5 U.S.C. 6 8101(5). It has been held that

"[t]he type of injuries covered in 5 U.S.C. 9 8101(5)...

does not appear to include such claims as... for discrimina-l tion, mental distress, or loss of employment." Sullican v.

United States,428 F. Supp. 79,81 (E.D. Wis.1977). We are inclined to agree. Neither the language of the statute itself a :*

o

~.',..),..

nor the policy foundations underlying workmen's compensa-tion acts support a conclusion that intentional discrimination is s v. 4 to be viewed as causing an." injury" subject to FECA coverage.

7 True it is that compensation acts are habitually given a liberal

3 5 g

construction in order to effectuate their intended purposes, e.g., United States v. Udy,381 F.2d 455,456 (10th Cir.1967),

b_

but it should also be recognized that "[s]uch a rule of con-u

...4 e

struction is for the benefit of the employee so that liberal cov-0

> ~

erage under the Act may be provided," DeSousa v. Panama Canal Co.,202 F. Supp. 22,25 (S.D. N.Y.1962), and is not a device to be used for applying the FECA where it has no application or where stretching its application would be un-just, id. at 25; accord, 20 C.F.R. I 10.1(c).

bD,bN N N j>

3%

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n m.

• r' e

as e

. s.

?Azh iG'.* Q $W 18 DeFord v. Sec'y of Labor, et al.

Nos. 81-3228, etc.

Even if the FECA could be read such that it might otherwise apply to this case, DeFord should be allowed to make an l t election between alternative payments and benefits due him j,4 under administrative frameworks provided by Congress. Under T

a rather specific provision cf the FECA:

An individual entitled to benefits under this subchap-

! r ter because of his injury, or because of the death of an employee, who also is entitled to receive frem the United States under a provision of statute other than this sub-chapter payments or benefit < for that injury or death (except proceeds of an insurance policy), because of l '

service by him (or in the case of death, by the deceased) as an employee or in the armed forces, shall elect which benefits he will receive. The individual shall make the election within 1 year after the injury or death or within

~

~

• i--

~

I a further time allowed for good cause by the Secretary

. A.

r. -

e-of Labor. The election when made is irrevocable, except as otherwise provided by statute.

5 U.S.C. 5 8116(b). We do not question the principle that DeFord would not be allowed to maintain a civil action under the Federal Tort Claims Act or in tort at common law if the FECA is applicable, see, e.g., Joyce v. United States,474 F.2d 215,219 (3d Cir.1973), but we are mindful of the key con-sideration that "an injured Fe'deral employee must seek ad-l

• A-ministrative relief before he files suit," id. at 219. See also White v. TVA,58 F. Supp. 776 (E.D. Tenn.1945). If,indeed, g

t the FECA potentially applies to this case at all then DeFord

~ '

had two avenues by which, under the Secretary *; supervision, 1d8 Qj@i35(p,Ng, he might obtain compensation in an administrative proceed-W; ing. He obviously made an election between the two and we are aware of no reason why he should not be allowed to do so, l

particularly in light of 5 U.S.C. 68116(b).

Finally we might add that our conclusion regarding inap-I plicability of the FECA avoids, for reasons that spring from an entirely separate basis, the creation of what would certainly

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MhTAY.%y l lN Nos. 81-3228, etc.

DeFord v. Sec'y of Labor, et al.

19 appear to be a paradoxical situation. Where a " substantial question" exists with respect to FECA coverage, Congress has l

I left resolution of that question to the Secretary. Avasthi, supra, I

i, 608 F.2d at 1061; Reep v. United States, 557 F.2d 204, 207 (9th Cir.1977); Joyce, supra,474 F.2d at 219. Moreover, the Secretary's decision is: "(1) final and conclusive for all pur-poses and with respect to all questions of law and fact; and (2) not subject to review by another ofHeial of the United States or by a court by mandamus or otherwise." 5 U.S.C.

6 8128(b). See, e.g., Waters v. United States,458 F.2d 20 (8th Cir.1972); Soderman v. United States Civil Sero. Comm'n,313 F.2d 694 (Sth Cir.1962), cert. denied,372 U.S. 968,83 S. Ct.

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1089,10 L. Ed. 2d 131 (1963); Blanc v. United States,244 F.2d

." (

708 (2d Cir.), cert. denied,355 U.S. 874,78 S. Ct.126,2 L.

Ed. 2d 79 (1957). In the instant case the Secretary strenuously g.-

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argues that the FECA has no application. It is difHeult to see P.,

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y that either the interests of justice or the intent of Congress would be served should we require that DeFord pursue a

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claim under the FECA, when by statute the Secretary has been granted ultimate authority to deny coverage. Addi-tionalinquiry might be necessary in this area were we to rest our decision upon.this premise, since the Secretary has dele-gated certain of his powers under the FECA such that his designees have authority "except as.is otherwise provided by U

law," 20 C.F.R. I 10.2; but we need not venture further in light of our determination upon other grounds that no substan-tial question reguding FECA coverage is present here.

V.

b h

In light of the foregoing, we hold that the Secretary's finding I

of unlawful discrimination is supported by substantial evi-dence. As to the matter of relief, DeFord should be awarded compensatory damages insofar as they are found to be appro-priate. and he should receive reasonable attorneys' fees and costs._ as provided by statute. Absent circumstances not dis-i-

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20 DeFord v. Sec'y of Labor, et al.

Nos. 813228, etc.

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closed in this record, he should be reinstated to his former 1 j

job. The Secretary shall otherwise fashion appropriate relief,

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including restoration of all benefits and entitlements due h$

l DeFord. In conjunction with reinstatement, the compensation I

and damages provided for by statute should allow the formula-

+j tion of a complete and proper remedy, without the creation of

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administrative leave or other novel benefits.

d Accordingly, this case will be remanded to the Secretary l

for further proceedings consistent with this opinion.

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