
USCA1 Opinion

	




                           UNITED STATES COURT OF APPEALS                                 FOR THE FIRST CIRCUIT                                 ____________________        No. 93-2287                                ROBERT B. REICH, ETC.,                                 Plaintiff, Appellee,                                          v.                           CAMBRIDGEPORT AIR SYSTEMS, INC.,                                Defendant, Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                  [Hon. Bailey Aldrich,* Senior U.S. Circuit Judge]                                         _________________________                                 ____________________                                        Before                                Breyer,** Chief Judge,                                          ___________                           Campbell, Senior Circuit Judge,                                     ____________________                               and Cyr, Circuit Judge.                                        _____________                                 ____________________            Barry  C.   Klickstein  with  whom   Herbert  Abrams,  Sandra   J.            ______________________               _______________   ___________        McLaughlin  and Abrams, Roberts, Klickstein  & Levy were  on brief for        __________      ___________________________________        appellant.            Edward   D.   Sieger,  Senior   Appellate   Attorney,   Thomas  S.            ____________________                                    __________        Williamson,  Jr.,  Solicitor of  Labor,  Allen  H. Feldman,  Associate        ________________                         _________________        Solicitor  for Special  Appellate  and Supreme  Court Litigation,  and        Nathaniel I. Spiller, Counsel  for Appellate Litigation, United States        ____________________        Department of Labor, were on brief for appellee.                                  ____________________                                    June 20, 1994                                    ____________________        *Of the First Circuit, sitting by designation.        **Chief Judge Stephen Breyer  heard oral argument in this  matter, but        did not participate  in the drafting  or the  issuance of the  panel's        opinion.   The  remaining two panelists  therefore issue  this opinion        pursuant to 28 U.S.C.   46(d).                                 ____________________                      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.   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                                         -3-            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 (1985).            _____________                                          A.                                         -4-                      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,                                            ____________________            1.  Cambridgeport concedes  that the  OSH Act  would prohibit            Roche's termination if  in fact he was discharged  because of            his relationship with Richardson.                                           -5-            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.                                           ________            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                                         -6-            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                                         -7-            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."                                         -8-                      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.    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                                         -9-                      by any person in violation  of this subsection                      may . . . file a complaint with  the Secretary                      alleging such discrimination. . . .  If [after                      appropriate]   investigation,   the  Secretary                      determines   that   the  provisions   of  this                      subsection have been violated, he  shall bring                      an  action  in any  appropriate  United States                      district court against  such person.   In  any                      such action the United States  district courts                      shall  have jurisdiction,  for cause  shown to                      restrain  violations  .  .  .  and  order  all                                                          __________                      appropriate   relief  including   rehiring  or                      ____________________                      reinstatement  of the  employee to  his former                      position with back pay.            29  U.S.C.    660(c)(2)  (emphasis  added).   We  must decide            whether  the district  court's awarding  of damages  equal to            twice the  employees' lost back pay  was "appropriate relief"            within the meaning of the statute and  under the facts of the            case.                        The Secretary  urges that  we interpret    11(c) in            the  light of Franklin v. Gwinnett County Public Sch., 112 S.                          ________    ___________________________            Ct.  1028, 1032 (1992).  In Franklin, the Supreme Court ruled                                        ________            that  federal courts  may award  monetary damages  in private            actions  brought  to  enforce   Title  IX  of  the  Education            Amendments of 1972, 20 U.S.C.    1681-1688 ("Title IX").  Id.                                                                      ___            at 1038.   Congress did  not explicitly  provide for  private            actions  in Title  IX; however,  the right  to  bring private            actions was  earlier  "implied" by  the  Court in  Cannon  v.                                                               ______            University of Chicago, 441  U.S. 677 (1979).  Even  absent an            _____________________            express  right  to  sue, monetary  damages  were  held to  be            available because  the Court "presume[s] the  availability of            all  appropriate  remedies   unless  Congress  has  expressly                                         -10-            indicated otherwise."   Franklin, 112  S. Ct. at  1032.   The                                    ________            Court  announced "[t]he general  rule . . . that absent clear                                                             ____________            direction  to the  contrary by  Congress, the  federal courts            ___________________________            have  the  power  to  award  any  appropriate  relief  in   a            cognizable  cause of  action  brought pursuant  to a  federal            statute."  Id. at 1035 (emphasis added).                       ___                      The instant  case differs from Franklin  in that we                                                     ________            are here  construing Congress's meaning when,  in creating an                                 __________            express  cause of  action  for  the  Secretary  of  Labor  to            institute  on behalf  of an  aggrieved employee,  it licensed            courts  to "order all appropriate relief."  In Franklin, "all                                                           ________            appropriate remedies" were the Court's words, not Congress's.            Nonetheless,  the parallel  is unmistakable.   It is  hard to            believe that  the Supreme  Court     having presumed  that an            implied  private  right of  action included  "all appropriate            remedies"  or "any appropriate  relief," and having construed            remedies so described to  include "monetary damages" and "any            of   the    procedures   or   actions    normally   available            . . . according to  the exigencies  of the particular  case,"            112  S.  Ct.  at  1034      would  construe  less  generously            Congress's  similar phrase,  "all  appropriate  relief."   We            think   Franklin  strongly  suggests  that  "all  appropriate                    ________            relief" as  written in    11(c) embraces monetary  damages as            well as  other relevant  forms of relief  normally available,                                         -11-            Congress  having  provided   no  "clear  direction"  to   the            contrary.  See 112 S. Ct. at 1035.                       ___                      Cambridgeport, nonetheless, would have us find here            "clear  direction to  the contrary"  because the  phrase "all            appropriate  relief" is  succeeded by  the  words, "including            rehiring  or  reinstatement of  the  employee  to his  former            position  with back  pay."   This,  we  are told,  evinces  a            Congressional  intent  to  limit  relief  to  those  remedies            expressly  mentioned, or  at least  to the kinds  of remedies                                                       _____            mentioned.   Cambridgeport  contends  that given  the express            delineation of  certain  remedies,  "[t]here  is  nothing  to            suggest that  Congress affirmatively intended [] an expansive            interpretation"  of    11(c),  and  that  double damages  are            therefore unauthorized under the OSH Act.                      However, the key language of the OSH Act  is broad.            It authorizes a court to "order all appropriate relief."  The            further   language   including    certain   remedies,    like                                 _________            reinstatement,  indicates  the   availability  of  the  named            remedies,  but does  not  purport to  limit "all  appropriate            relief" to those remedies  only.  The mere naming  of certain            included remedies neither suggests nor is a "clear direction"            that  other remedies are precluded.  See Franklin, 112 S. Ct.                                                 ___ ________            at 1035; Federal Land Bank of St. Paul v. Bismark Lumber Co.,                     _____________________________    __________________            314 U.S. 95, 100  (1941) ("[T]he term 'including' is  not one                                         -12-            of   all-embracing   definition,  but   connotes   simply  an            illustrative application of the general principle.").                      We  conclude  that   the  phrase  "all  appropriate            relief"  under      11(c)  includes  "monetary   damages"  as            specifically held in Franklin.  Moreover, given the expansive                                 ________            language in  Franklin ("[t]he general rule  . . . that absent                         ________            clear  direction to  the  contrary by  Congress, the  federal            courts  have the power to  award any appropriate  relief in a            cognizable  cause of  action  brought pursuant  to a  federal            statute,"   112 S. Ct.  at 1035), it  is difficult to exclude            even  exemplary   damages   where  otherwise   justified   in                  _________            particular circumstances.   Later, analogous federal statutes            protecting "whistleblowers" expressly list  exemplary damages            as  within  the rubric  of  "all  appropriate relief."    For            example, 42 U.S.C.    5851 protects whistleblowers in nuclear            facilities  from  retaliatory  discharge and  discrimination.            The  jurisdiction  provision  of  the  statute  provides   in            relevant part:                      In actions brought under this subsection,                      the    district    courts   shall    have                      jurisdiction  to  grant  all  appropriate                      relief  including,  but  not limited  to,                      injunctive  relief, compensatory  relief,                      and exemplary damages.            42 U.S.C.    5851(d).  See  also 15  U.S.C.   2622(d)  (toxic                                   _________            substances) ("In  actions brought under this  subsection, the            district  courts   shall  have  jurisdiction  to   grant  all            appropriate   relief,   including   injunctive   relief   and                                         -13-            compensatory  and  exemplary damages.");  42  U.S.C.    300j-            9(i)(4) (safety  of public water systems)  (courts may "grant            all  appropriate  relief  including,  but  not  limited   to,            injunctive  relief, compensatory, and exemplary damages"); 42            U.S.C.     7622(d) (air  pollution)  (courts  may grant  "all            appropriate relief including, but  not limited to, injunctive            relief, compensatory, and exemplary damages").                      By  expressly  identifying  exemplary   damages  as            authorized under these  similar statutes, Congress recognizes            exemplary damages as falling within the term "all appropriate            relief."    To be  sure,  the  express  mention of  exemplary            damages  in these other statutes can be said to reflect doubt            whether, without  such reference, the term  would necessarily            include exemplary  damages.  Under the  broad and unequivocal            language  in Franklin,  however, the  absence of  an explicit                         ________                 _______            mention in the OSH Act would not seem enough to take from the            courts  their "'"power to  utilize any  of the  procedures or            actions normally available  . . . according to the exigencies            of  the particular  case."'"   Franklin, 112  S. Ct.  at 1034                                           ________            (quoting J.I. Case Co. v. Borak, 377 U.S. 426, 433-34 (1964),                     _____________    _____            in  turn quoting  Deckert v.  Independence Shares  Corp., 311                              _______     __________________________            U.S. 282, 288 (1940)).  Where Congress itself has recognized,            in these  other statutes,  that "all appropriate  relief" may            include exemplary  damages, it is  difficult to  see why  the                                         -14-            mere  omission  of the  specific  reference  should compel  a            narrower reading.                        Courts  have traditionally  had  the power  in tort            cases to  award damages "larger than the  amount necessary to            reimburse actual  monetary loss sustained or even anticipated            by  the plaintiff,  and thus  redress intangible  elements of            injury that are 'deemed  important, even though not pecuniary            in  [their]  immediate consequences[s].'"   United  States v.                                                        ______________            Burke,  112  S.  Ct. 1867,  1871  (1992)  (quoting  D. Dobbs,            _____            Remedies  136  (1973)).    And  in  circumstances  where  the            ________            defendant's misconduct was intentional or reckless, "punitive            or exemplary damages  are generally available."   Id. at 1872                                                              ___            (citations omitted).   See also Molzof v.  United States, 112                                   ________ ______     _____________            S. Ct. 711,  715 (1992) (the Supreme  Court's "decisions make            clear  that the  concept  of 'punitive  damages'  has a  long            pedigree in  the law"); Rowlett v.  Anheuser-Busch, Inc., 832                                    _______     ____________________            F.2d  194, 205  (1st  Cir. 1987)  ("[I]n jurisdictions  where            punitive  damages are authorized, punitive damages are within            the jury's discretion in cases requiring proof of intentional            wrongdoing.")  (citing  Smith v.  Wade,  461  U.S. 30,  53-54                                    _____     ____            (1983)).    Retaliatory  discharge  has been  treated  as  an            intentional tort.  See Travis v. Gary Community Mental Health                               ___ ______    ____________________________            Ctr., 921  F.2d 108, 112  (7th Cir. 1990);  see also  W. Page            ____                                        ________            Keeton et al., Prosser and Keeton on the Law of Torts,   130,                           ______________________________________            at 1027-29 (5th ed. 1984).                                         -15-                      Perhaps the strongest  argument for  distinguishing            Franklin,   and  deciding  that   punitive  damages  are  not            ________            available under 11(c) of the OSH Act, lies in certain aspects            of  its  legislative  history  and  in  the  practice  of not            awarding such damages under  certain other federal  statutes.            In the version  of the OSH  Act reported  to the full  Senate            from  the  Committee on  Labor  and Public  Welfare,  the Act            provided only for administrative  action to obtain relief for            an employee discriminated against for asserting  rights under            the Act.   See S. Rep.  No. 1282, 91st Cong.  2d Sess., 34-35                       ___            (1970),  reprinted in Legislative History of the Occupational                     ____________ _______________________________________            Safety and Health Act of 1970, at 174-75 (1971) ("Legislative            _____________________________                     ___________            History");  S. 2193,  91st Cong., 2d  Sess.,    10(f) (1970),            _______            reprinted in Legislative History at 261; Conf. Rep. No. 1765,            ____________ ___________________            91st  Cong., 2d  Sess., 39  (1970), reprinted  in Legislative                                                _____________ ___________            History  at 1192.  This  Senate version allowed employees who            _______            believed  they were  discriminated  against to  apply to  the            Secretary    for   an    investigation   of    such   alleged            discrimination.  S. 2193, supra,    10(f).  After appropriate                                      _____            investigation,  which could  include  a  public hearing,  the            Secretary was to  make findings  of fact.   If the  Secretary            found that a violation of the Act had occurred, the Secretary            was to  order "the person  committing such violation  to take                                                                     ____            such  affirmative  action  to  abate  the  violation  as  the            _________________________            Secretary deems appropriate,  including, but not  limited to,                      ___________________________________________________                                         -16-            the rehiring or reinstatement  of the employee to  his former            _____________________________________________________________            position with back pay."  Id. (emphasis added).            ______________________    ___                      This  language authorizing  the Secretary  to order            "such affirmative action" was similar to the language used in            the remedial provisions of  both the National Labor Relations            Act ("the NLRA") and of Title  VII of the Civil Rights Act of            1964 ("Title VII").  Section 10(c) of the NLRA authorizes the            National Labor Relations Board to  investigate allegations of            unfair labor practices and,  if the allegations are found  to            be  true,   to  order  "such   affirmative  action  including                                    __________________________            reinstatement  of employees with or without back pay, as will            effectuate  the  policies"  of the  Act.    29  U.S.C.    160            (emphasis added).                      Similarly,   706(g) of  Title VII authorizes courts            hearing  a  complaint   of  discrimination  to  "order   such                                                                     ____            affirmative action as may  be appropriate, which may include,            __________________            but is not limited to, reinstatement or  hiring of employees,            with or without back pay .  . . or any other equitable relief            as  the  court  deems  appropriate."   42  U.S.C.     2000e-5            (emphasis added).  This provision was expressly modeled after              10(c) of  the NLRA.  See Abermarle Paper  Co. v. Moody, 422                                   ___ ____________________    _____            U.S.  405,  419 &  n.11  (1975); Robert  Belton,  Remedies in                                                              ___________            Employment Discrimination Law   13.3 at 430 (1992).              _____________________________                      The  similarity of  the  Senate's early  version of            what  became   11(c) of  the OSH Act  to both    10(c) of the                                         -17-            NLRA and   706(g) of Title VII suggests that the Senate meant            to incorporate into its version of the OSH Act the same kinds            of remedies that were available under the NLRA and Title VII.            And  in choosing  such  remedies, the  Senate was  presumably            aware that, as early as 1938, the Supreme Court had held that            punitive  damages   were  not  available  under   the  NLRA.2                                      ___            Consolidated Edison Co. v. NLRB, 305 U.S. 197, 235-36 (1938);            _______________________    ____            see also Republic Steel Corp. v. NLRB, 311 U.S. 7, 12 (1940).            ________ ____________________    ____            The Court  had interpreted the NLRA's  language by explaining            that the  power to command "affirmative  action" was remedial            rather  than punitive.  Consolidated Edison, 305 U.S. at 236;                                    ___________________            see also Republic Steel, 311 U.S. at 12.              ________ ______________                      Therefore,  if this  language  allowing  courts  to            order  "affirmative action"  had been  retained in  the final            version of the OSH Act, we  would be in a position similar to            those courts that have interpreted Title VII as not providing            for punitive damages, basing their  decisions in part on  the            fact that if punitive damages are not available under   10(c)            of  the  NLRA, they  should not  be available  under statutes            modeled after that provision.  See, e.g., Richerson v. Jones,                                           ___  ____  _________    _____            551  F.2d  918,  927  (3d  Cir.  1977)  (noting  that  "close            relationship" between Title VII provision  and NLRA provision                                            ____________________            2.  At the time  of the  reporting of the  Senate version  in            October 1970,  the provision of punitive  damages under Title            VII had  not been the subject of  review by the Supreme Court            or any  court of appeals.  See Belton, supra at   13.3 nn.33-                                       ___         _____            34.                                         -18-            "provides additional evidence that Congress did not intend to            authorize"  punitive damages under  Title VII); Harrington v.                                                            __________            Vandalia-Butler Board of Education, 585 F.2d 192, 196-97 (6th            __________________________________            Cir. 1978), cert. denied, 441 U.S. 932 (1979); Walker v. Ford                        ____________                       ______    ____            Motor  Co., 684 F.2d 1355, 1363-64 (11th Cir. 1982); see also            __________                                           ________            DeGrace v. Rumsfeld, 614 F.2d 796, 808 (1st Cir. 1980).            _______    ________                      The  final   bill,  however,   was  a   product  of            compromise between the Senate and House versions  and did not            include   the  Senate  language   allowing  only   for  "such            affirmative action" as the Secretary deemed appropriate.  The            penalties  in the  House  version of  the  OSH Act  had  been            different and stronger than those in the Senate version.  The            House bill had  called for civil  and criminal penalties  for            employers who discriminated against  employee whistleblowers.            See Conf.  Rep. No. 1765, supra, at  39.  The final language,            ___                       _____            making specific  the jurisdiction  of the district  courts in            actions  brought  by the  Secretary  and  allowing courts  to            provide "all appropriate  relief," emerged from  a conference            committee.                      One might argue, perhaps,  that the substitution of            the  phrase "all  appropriate relief"  for "such  affirmative            action"  evinced  merely  careless  drafting  rather  than  a            legislative intent  to broaden  the remedies available.   The            conference report says nothing about an intent to broaden the            Senate's remedies.   Nonetheless,  there is a  significant                                            -19-            and obvious     distinction between  the right  to order  the            offender  "to  take  such  affirmative action  to  abate  the            violation  as  the  Secretary  deems  appropriate,  including            . . ."  and authorizing  a  court "to  order all  appropriate            relief, including . . . ."   The final bill was a  product of            compromise      the Senate  allowed  the  Secretary to  bring            causes of action in the district courts; the House gave up on            criminal penalties.  In  this atmosphere of "substantial give            and  take," see 116 Cong. Rec. 42,200 (1970) (remarks of Rep.                        ___            Perkins),  reprinted in  Legislative History  at 1200,  it is                       ____________  ___________________            hardly obvious,  where different language was  used, that the            conference committee desired merely  to transfer to a federal            court the exact same set  of remedies the Senate gave  to the            Secretary  of Labor in its earlier version.  Indeed, it would            seem  inconsistent to assume, on the  one hand, that Congress            intends to incorporate an entire remedial scheme when it uses            a term of art in a statute, see, e.g., Richerson, 551 F.2d at                                        ___  ____  _________            927, but to  assume that,  on the other  hand, when  Congress            omits  the term of art and adopts different language, that it            did so inadvertently.                      Choice of the  terminology "all appropriate relief"            suggests that Congress  might have been  looking more to  the            language of the Labor-Management Reporting and Disclosure Act            of 1959, which outlines a "bill of rights" for union members,            29  U.S.C.   411(a), and  provides that actions for violation                                         -20-            of those rights may be had to recover "such relief (including            injunctions) as  may be appropriate."   29 U.S.C.    412.  At            the time  of the passage  of the OSH  Act, the only  court of            appeals that had ruled on the issue had held that 29 U.S.C.              412  allowed for  punitive  damages.   International Bhd.  of                                                   ______________________            Boilermakers v.  Braswell, 388 F.2d 193,  199-201 (5th Cir.),            ____________     ________            cert. denied, 391 U.S.  935 (1968).3   If we were to  presume            ____________            that the language of   11(c) was modeled after previous labor            legislation,  the similarity  to the  language of  the Labor-            Management Reporting and Disclosure Act of 1959 would support            our decision here.                      We  cannot  find,  therefore,  in  the  legislative            history  of the OSH Act  any "clear direction"  that the term            "all appropriate relief"  was intended to deny  to the courts            remedial powers to award compensatory and punitive damages in            a  cause of  action analogous  to an  intentional tort.   See                                                                      ___            Smith, 461 U.S. at 48-49 ("As a general matter, we discern no            _____            reason why  a person  whose federally guaranteed  rights have            been  violated should  be granted  a more  restrictive remedy                                            ____________________            3.  Other courts  of  appeals that  have since  ruled on  the            issue  are in  agreement.   See, e.g.,  Cooke v.  Orange Belt                                        ___  ____   _____     ___________            Dist. Council, 529 F.2d  815, 820 (9th Cir. 1976);  Morrissey            _____________                                       _________            v.  National Maritime  Union, 544  F.2d 19,  24-25 (2nd  Cir.                ________________________            1976); Keene v. IUOE  Local 624, 569 F.2d 1375,  1381-1382, &                   _____    _______________            n.8 (5th  Cir. 1978); see  also International  Bhd. of  Elec.                                  _________ _____________________________            Workers v.  Foust,  442 U.S.  42,  47 n.9  (1979)  (reserving            _______     _____            decision on this point).                                         -21-            than   a  person   asserting  an   ordinary  tort   cause  of            action.").4                      We conclude, in accordance  with the meaning of the            same words as used  in Franklin, that the statutory  power to                                   ________            award  "all  appropriate  relief"  gave  the  district  court            authority, where such relief is in fact appropriate, to award            compensatory  and  even  such  traditional  other  relief  as            exemplary damages.  That authority  would be broad enough  to            support  an award  of twice  the employees' pay  provided the            facts and circumstances of this case  justified such an award                                            ____________________            4.  Cf.  Individuals  with  Disabilities  Education  Act,  20                ___            U.S.C.     1401-1485, which  requires participating state and            local  educational    agencies "to  assure  that  handicapped            children  and  their  parents  or  guardians  are  guaranteed            procedural safeguards  with respect to the  provision of free            appropriate public  education" to such  handicapped children.            20  U.S.C.    1415(a). This  procedural framework  offers the            parents an opportunity  to contest any  decision made by  the            state  regarding the  child's identification,  evaluation, or            educational  placement   through  appropriate  administrative            procedures  and, if necessary, in state or federal court.  In            such civil actions, the court "shall grant such relief as the            court determines is appropriate."  20 U.S.C.   1415(e)(2).                 Courts have split  in determining  whether this  statute            allows  for punitive damages.  Cf. Marvin H. v. Austin Indep.                                           ___ _________    _____________            Sch. Dist., 714  F.2d 1348, 1356 (5th Cir.  1983) (procedural            __________            focus of Act  means that relief under   1415(e)(2) "generally            includes  only  prospective  relief"  and  does  not  include            compensatory or punitive damages); Woods on behalf of T.W. v.                                               _______________________            New  Jersey Dept.  of Educ.,  796 F.  Supp. 767,  776 (D.N.J.            ___________________________            1992) (punitive damages available); see  also Burlington Sch.                                                _________ _______________            Comm.  v.  Mass. Dept.  of Educ.,  471  U.S. 359,  369 (1985)            _____      _____________________            ("ordinary meaning of these  words [to 'grant such  relief as            the   court  determines   is   appropriate']  confers   broad            discretion on the court").                                                      -22-            as  additional  compensation  and  as  deserved  punitive  or            exemplary damages.                                          B.                      Our final  inquiry,  then,  is  whether  the  court            abused its discretion in deciding  on this record that double            damages  relief  was "appropriate,"    bearing  in mind  that            determination  of the  amount  of damages  "falls within  the            sound  judgment and discretion  of the factfinder."   Soto v.                                                                  ____            United States, 11 F.3d 15, 18 (1st Cir. 1993).              _____________                      Here, accepting the court's findings of fact  which            we  think were not clearly erroneous, we cannot say the award            was unreasonable.   There  was evidence that  both Richardson            and  Roche   incurred  monetary   losses  because   of  their            discharges  in addition to their lost back pay.  The district            court stated that a portion of the award  covered prejudgment            interest, which, depending on the interest rate chosen by the            court, could itself amount to more than 35% of the back wages            owed.                      In   addition,   the  court   concluded   that  the            defendant's  conduct,  "both  in  and  out  of  court,  [was]            consistently  brash,"  suggesting  a  belief  that  exemplary            damages were in  order.  The  court found that  Cambridgeport            had intentionally retaliated against Richardson and had fired            Roche as an example to other employees.  The court also noted            that  its "general picture" of  the defendant was informed by                                         -23-            the  testimony  of   a  Labor  Department  investigator   who            testified  that, during the  Secretary's investigation of the            employees' termination, a  member of Cambridgeport management            had offered the investigator  a case of wine, possibly  in an            attempt to influence the  investigation.  Moreover, the court            found that Cambridgeport during  trial had revealed itself as            "a  tough  outfit" that  "more  than  passively observed;  it            supervised  its witnesses."   Given  these findings,  and the            conduct of the defendant as assessed by the court,  the court            did not exceed  its discretion  in awarding  double back  pay            damages.                      Affirmed.  Costs to appellee.                        ________   _________________                                         -24-
