Reich v. Cambridgeport Air Systems, Inc., 93-2287

• Citation: 26 F.3d 1187
• Decision Date: 04 May 1994
• Docket Number: No. 93-2287,93-2287
• Parties: , 16 O.S.H. Cas. (BNA) 1849, 1994 O.S.H.D. (CCH) P 30,469 Robert B. REICH, etc., Plaintiff, Appellee, v. CAMBRIDGEPORT AIR SYSTEMS, INC., Defendant, Appellant. . Heard
• Court: United States Courts of Appeals. United States Court of Appeals (1st Circuit)

Page 1187

26 F.3d 1187

63 USLW 2009, 16 O.S.H. Cas. (BNA) 1849,

1994 O.S.H.D. (CCH) P 30,469

Robert B. REICH, etc., Plaintiff, Appellee, v. CAMBRIDGEPORT AIR SYSTEMS, INC., Defendant, Appellant.

No. 93-2287.

United States Court of Appeals First Circuit.

Heard May 4, 1994.

Decided June 20, 1994.

Barry C. Klickstein with whom Herbert Abrams, Sandra J. McLaughlin and Abrams, Roberts, Klickstein & Levy, Boston, MA, were on brief for appellant.

Edward D. Sieger, Sr. Appellate Atty., Thomas S. Williamson, Jr., Sol. of Labor, Allen H. Feldman, Associate Sol. for Sp. Appellate and Supreme Court Litigation, and Nathaniel I. Spiller, Counsel for Appellate Litigation, U.S. Dept. of Labor, Washington, DC, were on brief for appellee.

Before BREYER, ^* Chief Judge, CAMPBELL, Senior Circuit Judge, and CYR, Circuit Judge.

LEVIN H. CAMPBELL, Senior Circuit Judge.

The Secretary of Labor ("the Secretary") brought this retaliatory discharge action in the United States District Court for the District of Massachusetts pursuant to Section 11(c) of the Occupational Safety and Health Act of 1970 ("the OSH Act"), 29 U.S.C. Sec. 660(c). The Secretary's complaint alleged that defendant-appellant Cambridgeport Air Systems ("Cambridgeport") violated the OSH Act in June 1989 by discharging two employees, Peter Richardson and Shawn Roche, because they had complained about health and safety problems at Cambridgeport's Salisbury, Massachusetts plant. Richardson had been employed by the defendant as a welder; Roche was a general shipper-trainee.

The claim was tried by the court over five days in May 1993. In a written opinion, the district court found that the defendant-appellant had discharged Richardson because of his protected activities. The court awarded Richardson back pay and then doubled this award, as the Secretary had requested, to "cover additional damage plus prejudgment interest." The total amount awarded to Richardson was $104,968.

The court found that Roche was not discharged for his own protected activity. Rather, the court found that he was terminated because "he was a special friend of Richardson's," that his discharge was "a house-cleaning proposition," and that he "would not have been discharged but for his connection with Richardson." As with Richardson's award, the court awarded Roche an amount equal to twice his lost back pay, a total of $88,552.

Cambridgeport appeals, and we affirm.

I.

Cambridgeport does not appeal from the district court's ruling that Richardson was terminated because of his protected activities. Rather, Cambridgeport argues that the district court erred in finding that Roche's termination was retaliatory, and in calculating the back pay damages for both Richardson and Roche. As both determinations depend on findings of fact, we may set them aside only if "clearly erroneous." Fed.R.Civ.P. 52. We are required to give "due regard" to the "opportunity of the trial court to judge the credibility of the witnesses." Id. Under this deferential standard, we must accept a district court's account of the evidence if it is "plausible in light of the record viewed in its entirety.... Where there are two permissible views of the evidence, the factfinder's choice between them cannot be clearly erroneous." Anderson v. Bessemer City, 470 U.S. 564, 574, 105 S.Ct. 1504, 1511, 84 L.Ed.2d 518 (1985).

A.

Cambridgeport contends that Roche was terminated for valid work reasons, not in retaliation for his association with Richardson. Roche admitted at trial that he had made mistakes at work and had been reprimanded. Roche's supervisors also testified that his work performance was poor. Cambridgeport contends that the only evidence in support of the court's explanation for Roche's discharge came from Roche himself, whose testimony was not deemed credible in other respects by the district court. ¹

It is true that the district court was unwilling to credit Roche's testimony that he had joined Richardson in complaining about safety and health matters. Still, there was sufficient evidence to support the court's finding that Roche was terminated because of his connection with Richardson. There was evidence that Roche and Richardson were particularly close friends and that management was aware of this. Roche's supervisor had warned Roche not to raise safety concerns. In addition, Roche's termination followed less than a week after Richardson's, at a time when Roche, according to his testimony, was sufficiently concerned about his job security to bring a tape recorder to work. Moreover, the court was unimpressed by Cambridgeport's asserted reasons for Roche's discharge. Cambridgeport's witnesses, it said, had "greatly exaggerated" their accounts of Roche's problems at work.

Given its adverse assessment of the credibility of Cambridgeport's witnesses, and the close and visible connection between Richardson and Roche, the district court felt that the most likely explanation for Roche's discharge was that Cambridgeport wanted to "get rid of the smaller fry, and impress the other employees" not to associate with health and safety activists. While not the only possible one, this view of the evidence was "plausible in light of the record viewed in its entirety." Anderson, 470 U.S. at 574, 105 S.Ct. at 1511. Questions of witness credibility are particularly for the trier to resolve. United States v. Olea, 987 F.2d 874, 876 (1st Cir.1993). We cannot say the court clearly erred in finding that Roche was discharged because of his connection with Richardson.

B.

The parties stipulated that the period of back pay at issue was from the June 1989 dates of discharge until December 12, 1991. The district court calculated the damages for both employees based on the assumption that, but for their retaliatory discharges, they both would have retained their jobs for this entire period. Cambridgeport argues that this calculation was clearly erroneous and not supported by the evidence. Cambridgeport insists that its work is cyclical, and that given Richardson's lack of general sheet metal workers' skills and Roche's poor work history, both employees would have been laid off long before December 1991.

Again, the district court's findings depended in large part on its determination that Cambridgeport's witnesses lacked credibility. The district court did not believe the Cambridgeport witnesses' assertions that the work for which Richardson had been hired "fell off," nor did it believe that his work performance was unsatisfactory. In the court's view, the defendant's reasons for limiting its liability vis-a-vis Richardson were "likely trumped up." There was evidence that Richardson's ability and character were, overall, in the words of the court, "satisfactory," and that less than a week after his discharge, the company hired a new employee to do the exact work that Richardson had been doing. Moreover, there was evidence that Richardson could do non-welding work and could have been transferred to such work if the "pure welding" work "fell off."

There was also sufficient evidence in the record for the court to disbelieve Cambridgeport's contention that Roche would have been laid off soon after June 1989 "in accord with the cyclical swings of employment, and not rehired." Cambridgeport placed an advertisement in the local newspaper for "shop laborers" on the day Roche was discharged and subsequently hired workers in the department where Roche worked.

On reading the record as a whole, we cannot say the court's view of the evidence was implausible. It was not, therefore, clear error for the court to calculate the employees' back pay award on the basis of an assumption that, but for their retaliatory discharges, they both would have retained their jobs for the entire stipulated period.

II.

The Secretary advanced the view at trial that the appropriate measure of damages for both employees was an amount equal to twice their back pay losses. The Secretary argued to the district court that doubling back pay losses would not be a penalty, but would serve "to compensate[ ] for the effects of loss of pay upon the victim[s]."

The court adopted the Secretary's measure of damages, saying that "the conduct of this defendant, both in and out of court, is so consistently brash that [the court] feels justified in finding doubling the lost wages award, but to serve to cover additional damage plus prejudgment interest." The court later supported its doubling of the award by "calling for special support of the statutory purpose when an employer flaunts it both by word and by openly unambiguous conduct."

Cambridgeport argues that doubling the back pay award amounted to an award of punitive, or exemplary, damages, and was unauthorized by the OSH Act. It insists that courts interpreting the statute have uniformly limited recovery in cases of retaliatory discharge to back pay, employment search expenses, and in some instances, prejudgment interest. The Secretary contests the characterization of the award as exemplary. He argues that the court's statement that double wages served "to cover additional damage plus prejudgment interest" shows an intention to grant compensatory damages, and that the record supports the award on that basis. The Secretary concedes that this is the first reported case in which double damages have been awarded under the OSH Act. But he insists that the case also represents the first time the Secretary has actually asked for such damages.

A.

The question of whether the district court was within its authority to authorize double back pay damages turns on an interpretation of Section 11(c) of the OSH Act, 29 U.S.C. Sec. 660(c). This is a question of law, subject to our review de novo. United States v. Jones, 10 F.3d 901, 904 (1st Cir.1993).

The relevant provision reads:

Any employee who believes that he has been discharged or otherwise discriminated against by any person in violation of this subsection may ... file a complaint with...