Deford v. Secretary of Labor, s. 81-3228

• Decision Date: 10 February 1983
• Docket Number: 81-3254 and 81-3401,Nos. 81-3228,s. 81-3228
• Citation: 700 F.2d 281
• Parties: William Dan DeFORD, Petitioner, v. SECRETARY OF LABOR, Respondent, and Tennessee Valley Authority, Intervenor. TENNESSEE VALLEY AUTHORITY, Petitioner, v. SECRETARY OF LABOR, Respondent.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 281

700 F.2d 281

William Dan DeFORD, Petitioner, v. SECRETARY OF LABOR, Respondent, and Tennessee Valley Authority, Intervenor.

TENNESSEE VALLEY AUTHORITY, Petitioner, v. SECRETARY OF LABOR, Respondent.

Nos. 81-3228, 81-3254 and 81-3401.

United States Court of Appeals Sixth Circuit.

Argued Nov. 4, 1982.

Decided Feb. 10, 1983.

Thomas M. Hale, and James A. Ridley, III, argued, Kramer, Johnson, Rayson, McVeigh & Leake, Knoxville, Tenn., for petitioner.

Herbert S. Sanger, Jr., Gen. Counsel, James E. Fox, Assoc. Gen. Counsel, Justin M. Schwamm, Sr., Asst. Gen. Counsel, Robert E. Washburn, and E. Claire Garland, T.V.A., Knoxville, Tenn., for T.V.A.

Barry S. Sandals and Kathryn A. Oberly, argued, Dept. of Justice, Washington, D.C., for respondents.

Before ENGEL and MERRITT, Circuit Judges, and MORTON, ^* Chief District Judge.

MORTON, Chief Judge.

This appeal concerns three consolidated petitions for review of Orders rendered by the Secretary of the United States Department of Labor (Secretary) pursuant to the Energy Reorganization Act of 1974, as amended, 42 U.S.C. Sec. 5851, and regulations promulgated 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 discriminated against DeFord because he assisted or participated in a Nuclear Regulatory Commission (NRC) investigation at a TVA facility.

I.

DeFord was initially employed by TVA in 1971, and worked in the Electrical Engineering Branch of the Office of Engineering 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 responsibilities included ascertaining that various construction standards and specifications were complied with at TVA's Sequoyah Nuclear Plant, which was being built near Chattanooga, Tennessee.

During July 1980, officials from the NRC made a routine inspection of the Sequoyah project. DeFord participated in 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 officials met with NRC representatives in Atlanta, Georgia. At this meeting, NRC officials apprised TVA of the NRC's findings and rather strongly emphasized in particular their concern with respect to quality assurance on TVA construction sites. Along the way, TVA began its own investigation of the NRC findings. DeFord was among the quality assurance staff members who were interviewed as part of this internal audit.

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 Engineering Branch. Upon reporting to that division DeFord allegedly found that he was not welcome, that he was no 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 participation in the NRC inspection process. He stopped working on September 11, 1980, and was hospitalized ten days later for observation. DeFord has testified that upon suffering the embarrassment and humiliation that accompanied his transfer, he developed chest pains, encountered difficulty in sleeping, and began suffering from severe depression. A lengthy and complicated administrative process, set in motion by the filing of the aforementioned discrimination claim, has culminated in the instant proceeding.

II.

After an ex parte investigation of DeFord's charge was conducted, in accordance with 42 U.S.C. Sec. 5851(b) and applicable regulations, the Administrator for the Labor Department's Wage and Hour Division notified TVA by letter that "the weight of evidence to date" supported DeFord's claim of discrimination. Further, the letter stated that relief should be accorded, as follows:

1. Mr. William Dan DeFord is to be reinstated to either the M-5 Quality Assurance Engineering Section supervisory position held by him prior to August 11, 1980, or Mr. DeFord is to be assigned to a comparable M-5 supervisory position which is acceptable to him.

2. Mr. DeFord is to be given written assurances that his conditions and privileges of employment will not be adversely affected as a result of his involvement in the U.S. Department of Labor's action under the Employee Protection Provisions of the Energy Reorganization Act (ERA) Public Law 95-601, Section 21, 42 U.S.C. 5851.

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 competent 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.

Both DeFord and TVA appealed from this decision to the Labor Department's Office of Administrative Law Judges.

After a full, formal hearing in Knoxville, Tennessee, the administrative law judge (ALJ) 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" along with the hearing record.

Upon review of the ALJ's findings of fact, conclusions of law, and proposed order, the Secretary issued a ruling which stated, in pertinent part, as follows:

On the basis of the entire record, it is my conclusion that the findings and conclusions in the Judge's recommended decision of January 7, 1981, with respect to whether DeFord was discriminated against in violation of the Act are supported by the evidence in the record and are proper, and I adopt them as my own. Accordingly, I find that the respondent, the Tennessee Valley Authority, violated Section 210 of the Act (42 U.S.C. 5851) by discriminating against the complainant because of activities protected by that Section.

I do not agree with the Administrative Law Judge's conclusion that medical expenses and damages to reputation resulting from discrimination prohibited by the Act are recoverable by a claimant under 42 U.S.C. 5851. I find that the Administrative Law Judge erred in holding that damages for these items may be recovered under that provision. Such items do not come within the intended scope of the 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 Authority, is hereby ordered:

(1) to reinstate William Dan DeFord to the supervisory position held by him immediately prior to August 11, 1980, at the same grade and pay, and under the same terms, conditions, and privileges of employment, or to assign him to a comparable position with comparable responsibilities at the same grade and pay;

(2) to place him on administrative leave with full pay, rather than sick leave, from September 12, 1980, until such date as he is able to return to work;

(3) to cease discrimination against him in any manner with respect to his compensation, 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 participation in this proceeding;

(4) to pay him the aggregate amount of all costs and expenses (including attorney fees) reasonably 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. 5851 and 29 CFR 24.6(b)(3).

Pursuant to this decision, the Secretary by subsequent order awarded certain attorneys' fees and expenses to DeFord in the total amount of $9,392.00. This figure reflected a deduction of fees and costs which the Secretary viewed as having been incurred in pursuit of "a claim for damages for pain, suffering and mental anguish, injury to reputation, and medical 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 reinstatement 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 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 judge dissenting, stayed enforcement of the Secretary's decision. The three petitions were consolidated, and oral argument was heard on November 4, 1982.

III.

Several allegations are lodged by TVA against the procedural 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, was misapplied. But it is well recognized that the linchpin of TVA's challenge is and must be a claim that the Secretary's findings were not supported by substantial evidence. If substantial evidence underlay the Secretary's determination, reached after a full and fair hearing and upon review of the record as a whole, adjusting the order of proof and dissecting the...