Blackburn v. Martin

• Decision Date: 11 December 1992
• Docket Number: No. 91-2385,91-2385
• Citation: 982 F.2d 125
• Parties: 8 IER Cases 273 Paul A. BLACKBURN, Petitioner, v. Lynn MARTIN, etc., et al., Respondents.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 125

982 F.2d 125

8 IER Cases 273

Paul A. BLACKBURN, Petitioner, v. Lynn MARTIN, etc., et al., Respondents.

No. 91-2385.

United States Court of Appeals Fourth Circuit.

Argued June 1, 1992.

Decided Oct. 15, 1992.

Amended by Order Filed Dec. 11, 1992.

William Reynolds Williams, Willcox, McLeod, Buyck, Baker & Williams, P.A., Florence, SC, argued for petitioner.

Anne Payne Fugett, U.S. Dept. of Labor, Washington, DC, argued (Marshall J. Breger, Sol., Monica Gallagher, Associate Sol and William J. Stone, Counsel for Appellate Litigation, U.S. Dept. of Labor, on brief), for respondents.

Before WILLIAMS, Circuit Judge, BUTZNER, Senior Circuit Judge, and GARBIS, United States District Judge for the District of Maryland, sitting by designation.

OPINION

WILLIAMS, Circuit Judge:

Paul A. Blackburn seeks review under the Energy Reorganization Act of 1974 (ERA), 42 U.S.C. § 5851(c) (1988), of a final decision of the Secretary of Labor (the Secretary) relating to his wrongful termination from employment with Metric Constructors, Inc. (Metric). Specifically, Blackburn contends that there is not substantial evidence to support (1) the Secretary's determination of when Metric's back pay liability ended; (2) the Secretary's conclusion regarding the amount of overtime pay; and (3) the Secretary's denial of an award of compensatory damages. We conclude that substantial evidence supports the Secretary's decision on back pay and overtime, but not on the denial of compensatory damages. We remand to the Secretary for a determination of the appropriate amount of compensatory damages.

I

Metric was an independent contractor hired to perform construction work for Carolina Power and Light Company (CP & L) at its H.P. Robinson Nuclear Plant in Hartsville, South Carolina. Metric hired Blackburn to perform electrical work on a project during an outage at the plant. Blackburn's pay rate for this assignment was $12.00 an hour.

Metric terminated Blackburn's employment on September 5, 1984, when he refused to work in the plant's reactor container area without protective lead shielding in place. In December 1984, CP & L terminated Metric from the electrical project on which Blackburn had been working and gave the work to another contractor. All forty-five Metric electricians remaining on the project received reduction in force notices.

Power Plant Maintenance (PPM) took over Metric's work on the electrical project at the H.P. Robinson Nuclear Plant. PPM hired Blackburn to work at the Robinson Plant in October 1984. According to Blackburn, PPM then found he could not work on the job because CP & L refused to issue him a security clearance. Instead, he worked for two weeks on a PPM project in Roxboro, North Carolina. Blackburn had several different electrical jobs from 1985 to 1987 and his gross earnings were comparable to his earnings while working for Metric. In January 1988, Blackburn became self-employed, thereby removing himself from the labor market for electricians.

In her initial decision, the Secretary determined that Blackburn was wrongfully terminated from his employment with Metric Constructors in violation of the employee protection provisions of the ERA. 42 U.S.C. § 5851(a) (1988). ¹ After ordering Metric to reinstate Blackburn, the Secretary remanded the case to an Administrative Law Judge (ALJ) for a determination of back pay and/or compensatory damages and attorneys' fees.

Following an evidentiary hearing, the ALJ issued a recommended decision awarding Blackburn back pay for the period from September 6, 1984, the date of his discharge, through December 31, 1987, the date that Blackburn became self-employed. The ALJ also recommended awarding Blackburn $10,000 in compensatory damages for emotional distress and mental anguish, as well as employee expenses, such as living expenses incurred while working out of town after he was fired, attorneys' fees, and costs.

Both Blackburn and Metric filed exceptions to the ALJ's recommendation. After reviewing the exceptions, the Secretary issued her final decision. In that decision, the Secretary reduced the ALJ's determination of Blackburn's back pay, limiting it to the period from September 6, 1984, through December 31, 1984, the date CP & L terminated Metric's contract. The Secretary also modified the ALJ's determination of the amount of overtime Blackburn would have received had he not been terminated. Finally, the Secretary rejected the ALJ's recommended compensatory damages award. Blackburn appeals. ²

II.

Among the factors we address in reviewing a decision of the Secretary of Labor are whether it is supported by "substantial evidence", 5 U.S.C. § 706(2)(E) (1988), and whether it is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706(2)(A) (1988). See ERA, 42 U.S.C. § 5851(c)(1) (referencing Chapter 7 of Title 5). Substantial evidence consists of "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 1427, 28 L.Ed.2d 842 (1971) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 217, 83 L.Ed. 126 (1938)).

In conducting our review, we consider the entire record before us, including the ALJ's recommendation and any evidence that is contrary to the Secretary's determination. Universal Camera Corp. v. NLRB, 340 U.S. 474, 488, 71 S.Ct. 456, 465, 95 L.Ed. 456 (1951). It is not our role to determine the weight of the evidence or to substitute our judgment for that of the Secretary if her decision is supported by substantial evidence. Cf. Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir.1990) (discussing the standard of review for a decision of the Secretary of Health and Human Services).

In this case, the Secretary's decision departs from the ALJ's recommendation. Blackburn contends that this divergence requires us to examine the evidence more critically in determining whether there is substantial evidence to support the Secretary's decision. Syncro Corp. v. NLRB, 597 F.2d 922, 924-25 (5th Cir.1979). Blackburn's contention is correct, but only where disagreements between the Secretary and the ALJ involve questions of fact and credibility.

As the Supreme Court stated in Universal Camera:

The "substantial evidence" standard is not modified in any way when the Board and its examiner disagree. We intend only to recognize that evidence supporting a conclusion may be less substantial when an impartial, experienced examiner who has observed the witnesses and lived with the case has drawn conclusions different from the Board's than when he has reached the same conclusion. The findings of the examiner are to be considered along with the consistency and inherent probability of the testimony. The significance of his report, of course, depends largely on the importance of credibility in the particular case.

340 U.S. at 496, 71 S.Ct. at 469. The issues presented for appeal in this case require us to consider overlooked evidence and the correct application of legal principles rather than resolve differing credibility determinations or findings of fact. Because the issues in this appeal do not turn on credibility, we apply the basic substantial evidence standard without any "special scrutiny." NLRB v. Frigid Storage, Inc., 934 F.2d 506, 509 (4th Cir.1991); see also NLRB v. Stor-Rite Metal Prods., Inc., 856 F.2d 957, 964 (7th Cir.1988).

Applying this standard of review, we will address each of Blackburn's contentions and will determine whether there is substantial evidence to support the Secretary's decision with regard to (1) the time period for the back pay award; (2) the amount of overtime; and (3) the rejection of a compensatory damages award.

A

In her decision, the Secretary rejected the ALJ's recommendation that Blackburn be awarded back pay from the date of his discharge until the date he removed himself from the labor market by becoming self-employed. The Secretary concluded that Blackburn's entitlement to back pay ended on December 31, 1984, the date on which CP & L fired Metric from the electrical project for which Blackburn had been hired.

In reaching this conclusion, the Secretary relied on the legal principle, well-established in other employment discrimination contexts, that the goal of back pay is to make the victim of discrimination whole and restore him to the position that he would have occupied in the absence of the unlawful discrimination. Albemarle Paper Co. v. Moody, 422 U.S. 405, 421, 95 S.Ct. 2362, 2373, 45 L.Ed.2d 280 (1975) (quoting 118 Cong.Rec. 7168 (1972) (remarks introduced by Sen. Williams regarding remedial purposes of Title VII)); Brady v. Thurston Motor Lines, Inc., 753 F.2d 1269, 1273 (4th Cir.1985). Therefore, the person discriminated against should only recover damages for the period of time he would have worked but for wrongful termination; he should not recover damages for the time after which his employment would have ended for a nondiscriminatory reason. Martinez v. El Paso County, 710 F.2d 1102, 1106 (5th Cir.1983). For example, if a position were abolished for financial reasons, the employee would not be able to recover after the position was eliminated. Edwards v. School Bd., 658 F.2d 951, 956 (4th Cir.1981). Similarly, back pay liability ends when the contract under which the employee worked is terminated. Holley v. Northrop Worldwide Aircraft Servs., Inc., 835 F.2d 1375, 1377 (11th Cir.1988).

Blackburn first contends that his back pay should not expire December 31, 1984, because Metric continued to employ electricians at the H.P. Robinson plant after the end of 1984. While this may be the case, the key issue remains whether Blackburn, who was hired to work on a particular electrical project, would have continued to work for Metric after December 1984 had he not been terminated. Metric presented uncontroverted evidence that the project for which Blackburn was...